What the Supreme Court Will Be Asking as It Revisits Affirmative Action

hen the U.S. Supreme Court hears arguments on Wednesday in a legal battle over race-conscious admissions at the University of Texas, look for the justices to focus less on the broad debate over such policies than on nuts-and-bolts questions defining when they stray beyond established law.

The Supreme Court has taken up the dispute before, handing down a June 2013 ruling in which a 7-to-1 majority held that lower courts had erred by approving Texas’ policy without giving it sufficiently strict legal scrutiny. The high court’s decision to revisit the case, Abigail Noel Fisher v. University of Texas at Austin, No. 14-981, signals that at least four justices suspect that the lower courts again had failed to get it right in approving the university’s policy a second time.

Conceivably, a majority of justices could reach beyond the narrow scope of the case to a question not presented by either party: whether to abandon the court’s past willingness to let colleges consider race as part of holistic admissions processes. Some conservative advocacy groups have filed friend-of-the-court briefs urging the justices to strike down all race-conscious admissions policies as impossible to square with federal antidiscrimination laws, while several higher-education and civil-rights groups focused their briefs on opposing that possible outcome.

The justices, however, will find no arguments for the policies’ complete elimination in briefs for Ms. Fisher, a white woman rejected by Texas in 2008. What those briefs request is a finding that Texas disobeyed the court’s guidance by considering applicants’ race unnecessarily, despite having achieved sufficient diversity through race-neutral means.

Read more at The Chronicle of Higher Education: http://chronicle.com/article/What-the-Supreme-Court-Will-Be/234485