Students demonstrate outside the federal courthouse in Cincinnati, where the 6th Circuit Court of Appeals was hearing oral arguments on Proposal 2, the ban on affirmative action in Michigan, in 2012.AP Photo/Al Behrman

This article is from the archive of our partner National Journal

The U.S. Supreme Court will again hear a challenge to affirmative action in college admissions, a decision with the potential to decrease the numbers of black and Latino students accepted into selective colleges. It’s the second time in three years that the Court will hear arguments in Fisher v. University of Texas, a fact that already has affirmative-action advocates scared.

The case revolves around Abigail Fisher, a white woman who sued the University of Texas at Austin for what she calls discrimination. In Texas, the top 10 percent of students in their class are automatically accepted into any public university. Fisher didn’t make that cut. When she applied through general admission in 2008 she was also denied. The school, which factors race into its general admission process, rejected her application. Fisher sued, saying other accepted students were less qualified and “the only other difference between us was the color of our skin.”

In June, the Supreme Court announced it would hear the case again, a decision that required four votes (out of nine justices) and that might signal how the Court will rule.

A little background

The Supreme Court heard the case in 2013. But the legal challenge to affirmative action began before that, including the 2003 case Grutter v. Bollinger.

That case was similar to Fisher in that a white woman—Barbara Grutter—applied to a university and was denied admission, she believed, because of affirmative-action-based admission policies. The University of Michigan Law School admitted that it factored race into its application process, and the Supreme Court still ruled in favor of the school (in a 5-4 decision), with then-Justice Sandra Day O’Connor saying that the “race-conscious admissions program does not unduly harm non-minority applicants."

It was a huge blow to critics of affirmative action. Then Fisher came along.

First, a federal district court upheld the university’s policy, so Fisher appealed to the 5th Circuit Court. She lost there, too. When she appealed to the Supreme Court, the justices voted to vacate the decision in a 7-1 vote—essentially a non-ruling—saying the lower court hadn’t demanded enough evidence in reviewing the University of Texas’s admission policies. The lower court stood by its ruling. This year, the case was again appealed to the Supreme Court.

What it would mean

It is likely that there will be only eight justices in the decision. For the 2013 ruling, Justice Elena Kagan recused herself because she had filed briefs in the Fisher case when she was solicitor general. If the justices are tied, the decision would stand. But it takes four justices to grant a hearing, meaning four have already decided the case is questionable.

Critics of affirmative action hope that Justice Anthony Kennedy will bring the swing vote they need, making it a 5-3 ruling, a possibility given that Kennedy dissented in Grutter v. Bollinger. And there’s also a very real possibility that this case could be the end of affirmative action. Currently, eight states, which account for 29 percent of the nation’s students, already ban affirmative action.

This article is from the archive of our partner National Journal.

This story is part of our Next America: Workforce project, which is supported by a grant from the Annie E. Casey Foundation.

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