The use of racial preferences in college admissions has bedeviled the U.S. Supreme Court for nearly 40 years. And the court’s latest case presenting this difficult issue is a repeat customer. In Fisher v. University of Texas at Austin (Fisher II), No. 14-981, a less-than-full court will attempt to offer guidance to our nation’s educational institutions. Only seven justices will decide the case; Congress has not confirmed a replacement for the late Justice Antonin Scalia, and Justice Elena Kagan recused herself because she worked on the case as U.S. solicitor general. The court remanded Fisher I with instructions to apply a more exacting legal standard; the U.S. Court of Appeals for the Fifth Circuit reached the same result under that more rigorous standard, and the Supreme Court is now poised to review the substance of the lower courts’ rulings.
The Supreme Court decided Fisher I in 2013 after the University of Texas denied admission to Abigail Fisher, a Caucasian female. Fisher argued that the university’s use of race as a factor in the admissions process violated her right to equal protection under the 14th Amendment. The lower courts rejected Fisher’s constitutional challenge, but the Supreme Court remanded the case to the Fifth Circuit; the court held that the lower courts afforded too much deference to the university’s assertion that its program was the most narrowly tailored way to effectuate its interest in diversity. Writing for the majority, Justice Anthony Kennedy emphasized that strict scrutiny should be applied. On remand, the Fifth Circuit reaffirmed its earlier decision—under the strict scrutiny standard—and the Supreme Court again chose to review the case.
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