The three possible outcomes from SCOTUS' decision to rehear affirmative action case

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The Supreme Court announced today that it would rehear a 2013 case on race in higher education admissions, potentially setting up a decision declaring race-based admissions processes unconstitutional.


The Court had previously sent the case, Fisher v. University of Texas, back to an appeals court in a compromise decision.

Abigail Fisher, a white woman, sued the University of Texas at Austin, arguing that she was declined admission because she was white. The university guarantees admission to in-state students graduating in the top 10 percent of their high school class and then admit other students on a holistic basis that takes into account grades, test scores, essays, and an applicant's race. Grutter v. Bollinger, a 2003 case, allowed the use of race in that kind of holistic admissions process.

While lower courts sided with the university in the Texas case, Justice Anthony Kennedy's 2013 ruling sent it back and ordered appeals courts to be more skeptical of the university's program. His ruling was based on the idea of strict scrutiny, that the government has to show a compelling interest for doing what it does when it comes to constitutional rights.

Last year, a three-judge panel of the federal Fifth Circuit Court of Appeals did as Kennedy asked and reheard the case, but came to the same decision as they had previously—that the university had a good reason to include race in its admissions process. “To deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience,” Judge Patrick E. Higginbotham wrote.

Now, there are three possible outcomes for the Supreme Court's rehearing, Georgetown Law Professor Girardeau Spann told Fusion. “They could say the court did a good job of strict scrutiny, a bad job of strict scrutiny, or alternatively they could say, ‘I’m fed up with this, let’s just reject Grutter and reject the idea of taking race into account,’” Spann, who has studied the case, said. “At this point, nothing would surprise me.”

Option 1: Court finds lower court used a high enough level of scrutiny

The lower appeals court's decision upholding UT-Austin's admissions program would stand, with no changes to current law on college admissions policies.


Option 2: Court finds lower court failed strict scrutiny

The lower court could rehear the case again. It's unclear exactly what ramifications this decision would have, but could simply postpone a decision again.


Option 3: Court rejects race-based admissions altogether

This would be the most dramatic outcome, potentially forcing colleges across the country that include race in a holistic process to amend their admissions policies. Support and opposition would likely fall along partisan lines: the court's four conservative justices would be expected to reject; the liberal justices to uphold.


The focus would be on Kennedy, who is seen as leaning toward the conservatives—he dissented in the 2003 Grutter case that allowed race-based admissions to begin with. Many expected Kennedy to vote to reject race-based admissions in the Fisher case two years ago, but instead he essentially punted on the question by sending it back to the lower courts.

“Since Kennedy did not [reject race-based admissions] the first time, it’s not clear what he would say to justify doing it the second time,” Spann said.


Spann said that having major cases reheard was not very unusual for the Court, especially cases that have to do with race. Some race-based cases are so complicated that they lasted almost a decade, he said, going back and forth between different court levels.

The Court will rule on the rehearing's outcome next year.

Casey Tolan is a National News Reporter for Fusion based in New York City.