The case is brought by two white students who attended Stephen F. Austin High School in Sugarland. UT won in the district court and before a panel of the Fifth Circuit. It will be heard in the fall term of the Court, which begins on October 1.
The big change in the Court since the last major affirmative action case involving higher education (Grutter v. Bollinger, upholding the use of race in college admissions) is that Sandra Day O’Connor, who wrote the opinion upholding the use of affirmative action at the University of Michigan Law School, has retired from the Court, and has been replaced by Samuel Alito, a much more conservative judge. Alito could provide the fifth vote to overturn Grutter’s support for allowing consideration of race in college admissions.
I am familiar with this case [Abigail Noel Fisher v. University of Texas at Austin] and am writing an article about it for TEXAS MONTHLY.
As I have written before in this space, I regard Chief Justice Roberts as an activist judge, who is eager to promote a radical conservative agenda that includes Citizens United, Section 5 of the Voting Rights Act, the use of the commerce clause to justify government programs, and anything else he can get his hands on. This is going to be a wild term for the Court.
As the case reached the Supreme Court, it was primarily a claim that the current admissions policy is unconstitutional as a form of “blatant racial balancing.” But Fisher’s lawyers argued that, if the Texas plan satisfies the Supreme Court’s analysis in the Grutter decision, then the Court should reconsider that ruling. That is an issue that will loom over the case as it moves through the Court’s review.