The national debate over affirmative action appears to be headed back to the U.S. Supreme Court. Yesterday the U.S. Court of Appeals for the 5th Circuit declined to rehear the case of Fisher v. University of Texas at Austin with a full panel of judges. That refusal leaves the U.S. Supreme Court as the next and final step in the appeals process. Don't be surprised if the Court agrees to take the case.
If the name Fisher v. University of Texas at Austin sounds familiar, that's because the Supreme Court already issued one ruling on it back in June 2013. At issue was whether that state university had violated the Equal Protection Clause of the 14th Amendment by taking race into account when making undergraduate admissions decisions. In a surprising decision, however, the Court avoided the constitutional debate over affirmative action by ordering the 5th Circuit to rehear the case and reconsider the contested university policy under the appropriate level of strict judicial scrutiny.
Why did the Supreme Court call for a do-over? According to the majority opinion of Justice Anthony Kennedy, the 5th Circuit erred "by deferring to the University's good faith in its use of racial classifications." The second time around, Kennedy ordered, "the admissions process [must] be considered and judged under a correct analysis." (Writing separately in Fisher, Justice Clarence Thomas stated that he would "hold that a State's use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.")
The 5th Circuit subsequently reheard the case yet still reached the same outcome, voting once more in favor of the state university and its race-conscious admissions policy. Did the 5th Circuit apply strict scrutiny that time around? The court certainly said that it did, but Justice Kennedy and his colleagues are unlikely to take the tribunal at its word. All things considered, Fisher stands a good chance of returning to the High Court's docket sometime in 2015.