Yet another exciting day for SCOTUS watchers. Thursday morning, the Court released its opinion in Fisher v. University of Texas at Austin, holding in a 4-3 decision (Justice Elena Kagan did not participate) that the use of race in admissions at the Texas university was constitutional.

Opinion, written by Justice Anthony Kennedy, is here. Chief Justice John Roberts, Justice Clarence Thomas, and Justice Samuel Alito dissented. On first glance, it’s clear that Texas’ “Ten Percent Plan,” where the top 10% of the class from every Texas high school gains automatic admission was a big factor, as a race-neutral alternative that still increased diversity.

Petitioner Abigail Fisher had argued that the Ten Percent Plan should have been sufficient to meet UT’s diversity goals without requiring any further race-conscious admissions policies.

The majority of the court disagreed, accepting UT’s arguments that the Ten Percent Plan was not enough. Kennedy’s opinion does caution that UT has a “continuing obligation” to engage in “periodic reassessment of the constitutionality, and efficacy, of its admissions program…Going forward, that assessment must be undertaken in light of the experience the school has accumulated and the data it has gathered since the adoption of its admissions plan.”

In Fisher I, an earlier round of this case, the Court faulted the lower court for allowing too much deference to UT’s judgments on their diversity needs. In Thursday’s opinion, they softened that somewhat, stating, “Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”

With a 4-3 decision, many are naturally speculating what might have happened if Justice Antonin Scalia had not died earlier this year. A conservative stalwart on the Court, he would have almost certainly joined the dissenting justices, and perhaps may have been able to sway Kennedy, the Court’s swing vote, his way.

Justice Kennedy’s full opinion here:


Follow Sarah Rumpf on Twitter: @rumpfshaker.


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