THE BLOG
04/09/2013 05:03 pm ET | Updated Jun 09, 2013

I Am No Jimmy the Greek -- Round Two... Fisher v. Texas

While a year ago, I correctly predicted the U.S. Supreme Court's decision in the controversy concerning Arizona's anti-immigrant law, SB -1070, I once again seek to buck conventional wisdom and make a prediction that most experts have not sided with.

In Fisher v. University of Texas at Austin, the United States Supreme Court revisits the legality of higher education affirmative action admission programs. Fisher is likely to be most important decision since the 2003 Grutter v. Bullinger decision, where the high court by a slim 5-4 vote, upheld the constitutionality of an affirmative action program run by the University of Michigan.

While most experts predict the Supremes will either strike down the UT program in its entirety, or severely limit it, this constitutionalist and part-time prognosticator believes the Court will either uphold UT's program, or only strike down only one of its two diversity-promoting components. It is likely that Justices Roberts, Anton Scalia, Clarence Thomas and Samuel Alito (all of whom arguably benefitted in some fashion by formal or informal means to promote certain values in admissions decisions) will vote to strike down the UT program, taking a so-called colorblind approach to the constitution, as they have done in the past. The question will likely turn on whether Justice Kennedy will join them to create a majority that will effectively end affirmative action programs in higher education. The swing vote has complex, and to some conflicting, views on the subject: Justice Kennedy has expressed support with conservative justices who want to curtail affirmative action, and at the same time has echoed liberals who want to ensure campus diversity.

In the UT case, Abigail Fisher is a white student who was turned down by UT when she applied out of high school. She argues race was unfairly used as a consideration given that UT's student body was already diverse. Fisher sued and lost at the trial level, and on appeal, the Fifth District Court of Appeals upheld UT's program. Justice Kennedy will thus likely play the swing vote here. In the 2003 University of Michigan decision, Kennedy insisted that schools not turn to racial criteria without first exploring race-neutral alternatives to generate a diverse student population. He said race-based programs must be narrowly crafted to serve a compelling interest.

The Prediction: "Edi the Greek," well actually Puerto Rican, believes at least one of the two primary aspects of UT's program will meet the difficult threshold Kennedy supported in the Michigan case. The program at issue in the UT case has two primary components that are subject to challenge: the first, which is used to accept the bulk of its students, automatically accepts students in the top 10 percent of each Texas high school's graduating class, regardless of their race. Under its Top Ten Percent plan, 81 percent of UT's 2008's freshman class were admitted under the plan. I believe Justice Kennedy, or at least four of the eight justices (note, Justice Kagan is not taken part on the decision because of her role as Solicitor General in the lower court decisions) will find that the Top Ten Percent plan is a race-nuetral narrowly crafted plan that is crafted to promote a diverse student body. In the alternative, four of the justices may uphold the second portion of UT's plan, which will in turn cause many colleges and universities to follow it.

Under the second component of the UT plan, applicants who, like Fisher, fail to graduate in the top 10 percent of their high schools, have a further opportunity to gain admission to the University by scoring highly in a process that evaluates a host of factors that the university deems are of value, such as, leadership qualities, family circumstances and race. Fisher had a grade point average of 3.59 (adjusted to 4.0 scale) and was in the top 12 percent of her class at Stephen F. Austin High School, making her ineligible for the first means to enter UT. She also failed to score high enough to meet UT's second admission component. Because this second component considers a host of factors that the university seeks to promote, including diversity, I believe such a program is also consistent with the 2003 Grutter decision as well as the landmark 1978 Bakke decision, where Justice Powell, writing for himself and joined by Justice White, concluded that universities have a compelling interest in a diverse student body and therefore could consider race as a "plus" factor in its admissions program. Accordingly, I believe the second part of UT's program fits within Justice Powell's language in Bakke. The fact that UT has a two part admission program that some experts may argue is affected by race may be one too many components for the high court.

The above prediction is nonetheless made with considerably more caution than my previous efforts with respect to both Arizona's SB 1070, or in the Florida case Ruiz v. Robinson where I also predicted the outcome in this column. Not only is affirmative action one of the most contentious issues in our society, at least four Supreme Justices are openly hostile to any such programs that uses race as a factor for admission. Therefore, the best I can hope for is for a 4-4 split that will essentially uphold the lower courts' decisions that upheld UT's admissions program. Moreover, neither Grutter or Bakke stand on terribly firm ground -- the Court now has a different composition and the Bakke language cited above did not reflect the majority even when the decision was written.

Nevertheless, I believe sound reason will carry the day and the Court will recognize that diversity is an important social and educational value that must be actively promoted. And while the justices will not likely go as far as I have in my own writings and assert that this country has not come close to remedying its past wrongs, I believe at least four justices will decide not to destroy laudable efforts to promote diversity, access and inclusion.