Will the Supreme Court End Affirmative Action? A Preview of Fisher v. University of Texas at Austin on the Eve of Oral Argument

Abigail Fisher’s challenge to the University of Texas’s use of racial preferences in admissions decisions returns to the Supreme Court. The Court previously intervened in 2012, when it reversed the Fifth Circuit and directed the lower court to scrutinize more closely the university’s justification for its use of race. The lower court reaffirmed its previous ruling, and the Supreme Court took the case again—surprising many observers, who now anticipate a landmark decision that could change the face of affirmative action. Although Fisher hasn’t asked the Court to overrule Grutter v. Bollinger—the 2003 case holding that schools can take account of race to achieve diversity in some cases—the justices could substantially narrow the circumstances whereby schools can employ racial preferences, or even close the door on preferences altogether. Affirmative‐​action proponents, meanwhile, are pressing the Court to uphold the use of race in higher education or, at the least, to issue a narrow, fact‐​specific decision addressing only whether UT at Austin was justified in using race given the substantial diversity that it has achieved through race‐​neutral means.

Our panel will address these issues from all sides, discussing what’s at stake, what to look for at oral argument later in the week, and how the individual justices may view the case.