On Wednesday, the Supreme Court started hearing oral arguments in an affirmative action case that, once again, is putting the policy in jeopardy.

Abigail Fisher, 25, is a white woman who was not accepted to UT Austin when she applied in 2008. She claims that she was discriminated against for her race, citing as evidence that identical candidates who were not white were accepted into the school. Fisher brought her case against the school that year, and in 2009 the United States District Court sided with the university, which argued that it did not violate its holistic admissions approach—which it uses in tandem with automatic admission for students who rank high enough in their high school classes—when denying entry to Fisher.

The next year, Fisher appealed the decision. In 2011, the Fifth U.S. Circuit Court of Appeals again ruled in favor of UT. Fisher then escalated the case to the Supreme Court. In 2013, SCOTUS asked the appeals court to reconsider the case, saying that  the appeals court didn't "hold the University to the demanding burden of strict scrutiny." The appeals court ruled in favor of UT, again, and now the case is back with the Supreme Court.

So far, it seems, the justices are divided on how to rule. Reuters reports:

The court, whose ruling is expected by the end of June, appeared split ideologically, with liberals voicing support for affirmative action programs and conservatives questioning why the Texas program was needed to promote campus diversity.


Chief Justice John Roberts and other conservative justices came out against the affirmative action policy, but none with quite as much vitriol as Antonin Scalia, who wondered if the minority students currently accepted into UT deserve to be there.


"There are those who contend that it does not benefit African Americans to… to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less… a slower-track school where they do well," Scalia said. He continued, "I don't think it… it… it stands to reason that it's a good thing for the University of Texas to admit as many blacks as possible." Huh.

Greg Garre, a lawyer representing the University of Texas, told Scalia that "if you look at the academic performance of holistic minority admits versus the top percent admits, over time, they ­they fare better."

He also explained to the justice that separate and unequal would be a definite step backwards:

Frankly, I don't think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they're going to inferior schools. I think what experience shows… is that now is not the time and this is not the case to roll back student diversity in America.


It's going to be a long couple of months.

Danielle Wiener-Bronner is a news reporter.