Cara L. Gallagher, Weekend Contributor

When SCOTUS orders a case back to a lower court it’s rare that the case garners the same attention it received when it was in the Supreme Court.  But Fisher v. The University of Texas at Austin, a critical case that still has the potential to uproot affirmative action programs in public universities – one that beckoned Justice Sandra Day O’Connor to the SCOTUS pews on decision day in June of 2013 – is one you follow post-SCOTUS.  Perhaps Justice O’Connor traveled all that way to throw shade to those justices likely to upend her landmark 2003 affirmative action decision, Grutter v. Bollinger.  Although the spirit of Grutter remained intact, the majority’s 7-1 decision to remand the case back to a lower court was done so with explicit instruction that the University prove they’d satisfied the necessary strict scrutiny test.  The same attorneys who argued the case before the SCOTUS in 2013 stayed on the case arguing before a 3-judge panel in the U.S. Court of Appeals for the 5th Circuit.

On November 13, 2013 they, along with case namesake Abigail Fisher and the man who lobbied for the case to get into SCOTUS, Edward Blum, were back court.

Most (80%) applicants to the University get accepted through a Texas legislative program called the Top Ten Percent Plan (TTPP). If you’re in the top ten percent of your public high school, you’re automatically accepted to the UT. Abigail Fisher had solid grades but attended an academically competitive school and wasn’t a top ten-er (she was, however, in the top 12%). Fisher was pushed into the general applicant pool where a holistic admissions process is used. Because Texas public schools have become increasingly segregated, many of which are majority-minority schools, the TTPP has diversified UT’s student body in a seemingly race-neutral way. But such a plan hasn’t achieved the University’s goal of creating a critical mass of diverse students. One way the university works to achieve that goal is by employing a holistic process to admit students for the remaining (20%) seats. One subcategory, among six primary categories, uses race as a factor in determining admission through this method.

According to a piece from Joan Biskupic in Reuters, the decision would likely come down to one swing vote on the 3-judge panel.  “During an hour of arguments, it appeared that the three-judge panel, which previously had ruled unanimously in favor of the university, might splinter. Judge Emilio Garza, an appointee of Republican President George H.W. Bush, appeared sympathetic to Rein’s claim that the university cannot justify using race in its decisions.  Judge Patrick Higginbotham, an appointee of Republican President Ronald Reagan, implicitly defended the university.  The third judge, Carolyn Dineen King, appointed by President Jimmy Carter, a Democrat, offered little clue in her few questions as to whether she might reverse her prior vote for the policy.”

It did come down to one swing vote when on July 15, 2014 Judges King and, likely swing voter, Higginbotham decided UT’s use of race for those in the holistic admissions process was narrowly tailored. Judges King and Higginbotham were satisfied that the UT could to use race as one of several factors, in the admissions process in order to further the university’s goal of creating a critical mass of diverse students.

“In sum, it is suggested that while holistic review may be a necessary and ameliorating complement to the Top Ten Percent Plan, UT Austin has not shown that its holistic review need include any reference to race, this because the Plan produces sufficient numbers of minorities for critical mass. This contention views minorities as a group, abjuring the focus upon individuals—each person’s unique potential. Race is relevant to minority and non-minority, notably when candidates have flourished as a minority in their school—whether they are white or black. Grutter reaffirmed that “[j]ust as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race still matters.” We are persuaded that to deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter.”

Judge Garza was not persuaded that race-conscious holistic admissions processes are necessary nor have any measurable effect on achieving actual diversity.

“By accepting the University’s standing presumption that minority students admitted under the Top Ten Percent Law do not possess the characteristics necessary to achieve a campus environment defined by “qualitative diversity,” the majority engages in the very stereotyping that the Equal Protection Clause abhors.

In short, the University has obscured its use of race to the point that even its own officers cannot explain the impact of race on admission to competitive colleges. If race is indeed without a discernable impact, the University cannot carry its burden of proving that race-conscious holistic review is necessary to achieving classroom diversity (or, for that matter, any kind of diversity). Because the role played by race in the admissions decision is essentially unknowable, I cannot find that these racial classifications are necessary or narrowly tailored to achieving the University’s interest in diversity.”

On November 12, 2014 ten of the fifteen judges on the 5^th Circuit bench voted not to hear an en banc appeal by Fisher’s attorneys ostensibly dealing a final blow to affirmative action opponents and to the most important affirmative action case in ten years.

Maybe.

Five days later, two complaints were filed against the University of North Carolina – Chapel Hill and Harvard University for their race-based admissions processes. The cases were filed with the help of The Project on Fair Representation, the same organization that vetted Abigail Fisher’s case for the Supreme Court. We may also see a return of the Fisher case to the Supreme Court. Edward Blum, director of The Project, has plans to appeal the 5^th Circuit’s decision back to the SCOTUS.

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