Late last week, a U.S. appeals court voted 9-7 to not hear the Fisher v. Texas case around race-based college admissions here at UT Austin. Despite failing to get their day before the appeals court, some sources close to the case have indicated that the plaintiffs will likely file a petition to make their arguments before the Supreme Court. But, as you hopefully learned in GOV 301, the Court takes only a small fraction of the cases it is presented with.

Regardless, the legal commentators have been aflutter with speculation that the Court could, for the first time since the 2003 Bollinger decision, revisit the affirmative action issue. This bit of legal forecasting largely stems from the dissent written in last week’s decision by Fifth Circuit Chief Judge Edith Jones.

Chief Judge Jones made several important distinctions between what Bollinger outlined, and what UT is currently doing:

• The current ruling on Fisher allows for too much deference on the part of university administrators compared to the more limited use of race allowed by Bollinger.
• The top 10% rule has already made UT the most diverse large, public college in the U.S. By having an additional affirmative action policy on top of that, UT may be overstepping constitutional boundaries since it can’t use diversity as its motivation.
• UT is going beyond overall diversity and using affirmative action to ensure diversity across programs, and even across classrooms.

On the other hand, every court that has heard this case up until now supported the legality of the University’s admissions policies. Though that’s not a litmus test for the Supreme Court to take up the case, it does make the need for a higher court to resolve the issue less pressing.

The potential outcome of this case going to the Supreme Court makes it particularly interesting. If the Court does decide to accept the case, a decision would likely be handed down a year from now – just as the presidential race really begins to heat up.

Some legal analysts argue that UT’s recent “victory” at this stage could end up being bittersweet for advocates of race-based admission systems. Had the UT case been argued and found in favor of the plaintiffs, there was a decent chance that the University would not have taken the case to the Supreme Court in order to avoid risking a ruling against race-based admission that would have had a much broader application. Since that’s not the case, there remains the possibility that the Court could overturn the lower courts and ultimately undermine the legal footing of affirmative action, or at least scale back what is permissible.

At the same time, given the Supreme Court’s current make-up, it appears unlikely that a ruling reversing the legality of race-based admissions would be handed down. Even Justice Kennedy, who was nominated by Reagan and wrote a dissent in the last major affirmative action case, said that race can be used in admissions decisions as long as the process is based on a genuine individual review of each application. In other words, as long as there isn’t a quota system, using race is permissible.

While exactly how the Supreme Court would come down on this case is anyone’s guess, it has to get there first. Given UT’s legal victories so far, that may be the biggest obstacle for race-neutral admission advocates.