On Monday the Supreme Court agreed to hear an affirmative action case out of Texas, Fisher v. University of Texas at Austin, next term. This will mark the justices’ second review of the case. When it first heard arguments in Fisher two terms ago, the court punted: Rather than deciding the case on the merits, the justices simply held that courts must apply “strict scrutiny” to all affirmative action programs. That means any race-based admissions policies must be narrowly tailored to further a compelling government interest. The justices then kicked the case back to an appeals court to decide with the University of Texas’ affirmative action policies satisfied strict scrutiny.
After reconsidering the case, the appeals court held that the University of Texas’ policy did, indeed, satisfy strict scrutiny. Abigail Fisher, the white student behind the case, appealed once again to the Supreme Court. Now she hopes the court will strike down the university’s program as an unconstitutional violation of her equal protection rights. Justice Elena Kagan, who was involved in the case before joining the court, will recuse herself. Without its usual four-member liberal bloc, the court seems unlikely to uphold the program. However, Justice Anthony Kennedy will probably refrain from killing off affirmative action altogether. Instead, he may simply rule that this program is unconstitutional, while allowing that other, narrower affirmative action practices may satisfy equal protection.