In today’s Supreme Court oral argument in Fisher v. University of Texas at Austin, involving race-conscious college admissions, the Court indicated it might send the case back to the lower court for a second time, meaning that the Supreme Court could ultimately hear it for a third time.

Per Texas’s Top Ten Percent Plan, the top ten percent of Texas high school graduates are automatically admitted to UT Austin, which fills about 80 percent of the class. Unless an applicant has an “exceptionally high Academic Index” he or she will be evaluated through a holistic review where race is one of a number of factors.

UT Austin denied Abigail Fisher, a white Texan who did not graduate in the top ten percent of her class, admission. She sued claiming Austin’s use of race in admissions violates the Fourteenth Amendment’s Equal Protection Clause. She argued that using race in admissions is unnecessary because in the year she applied UT Austin admitted 21.5 percent minority students.    

The Court has held that the use of race in college admissions is constitutional if race is used to further the compelling government interest of diversity and is narrowly tailored. In Fisher I the Court held that the Fifth Circuit, which upheld UT Austin’s admissions policy, should not defer to UT Austin’s argument that its use of race is narrowly tailored. 

When the Fifth Circuit relooked at UT Austin’s affirmative action plan it concluded that it is narrowly tailored; Fisher again appealed to the Supreme Court.

As Lyle Denniston pointed out in his posting on SCOTUSblog after the Court agreed to hear this case for the second time, it was unclear what the Court would focus on at the argument and ultimately in its opinion.  

The UT Austin’s attorney and the Solicitor General, arguing on behalf of the United States in support of the holistic review including race, tried to focus the Court’s attention on their argument that holistic review using race was necessary because in the years when UT-Austin did not use race as a factor (because it was prohibited by a later overturned lower court case), minority enrollment went down.

Chief Justice Roberts and Justices Alito and Kennedy expressed concern that there wasn’t enough information in the record to determine whether using race as a factor in holistic review was really necessary. Justice Alito wanted to know if minority students admitted through holistic review actually enrolled in classes that were lacking in diversity thereby increasing classroom diversity and had characteristics that minority students admitted through the Top Ten Percent lacked. It did not appear the record contained this information.     

All three of the attorneys tried to address how many students would have been admitted using holistic review if race wasn’t a factor. UT-Austin’s attorney pointed out it is hard to know given that holistic review involves weighing many factors. The Solicitor General suggested the Court should compare the year with the highest number of minorities admitted through holistic review where race wasn’t a factor with the next three years where race was a factor.

Beyond the need for more diversity, the argument covered a gamut of other topics from whether affirmative action should end in 13 years (as the Court suggest 12 years ago in a previous case) to whether students really benefit from racial diversity in a physics class to whether lower performing minority students are better off at less prestigious higher education institutions.