When Justice Sandra Day O'Connor retired in 2005, she left room for a new swing vote to be nominated who could change affirmative action policy in the United States. Since O'Connor was replaced with the conservative Samuel Alito, Abigail Fisher's case against the University of Texas Austin may change how affirmative action looks in the United States. The case has implications not only for racial affirmative action, but also for policies like affirmative action for women applying to schools of engineering or other traditionally male fields.
Fisher's case was argued in front of the Supreme Court in October, and the justices are expected to issue a ruling in the spring.
According to Abigail Fisher, a recent graduate of Louisiana State University, her earning power would have been significantly higher if she had graduated from the University of Texas Austin. What's more, she claims that the reason she was not able to attend the University of Texas is that the university's affirmative action policies discriminated against her for being white.
It is true that the University of Texas Austin uses race as a factor in its admissions policy. However, in accordance with the 2003 Supreme Court opinion in Grutter v. Bollinger, race is only used as one of many factors in a holistic rating of a candidate. The ruling in Grutter allowed for this kind of holistic scoring system, while explicitly ruling that quota systems for racial or gender based affirmative action would not be considered constitutional.
However, Fisher's case is an interesting one in several different ways. For one thing, it's not clear that Fisher would have actually been granted admission to the University of Texas regardless of whether her racial background was white, black, or any other. According to the University's metrics, Fisher's lackluster standardized test scores and high school GPA would have been enough to bar her from admission even with additional points assigned for hardships or racial factors.
Additionally, it can be difficult for students to actually prove that they would have derived any benefit from having gone to a different school.
The case has been made even more interesting for court observers by Justice Elena Kagan, who recused herself from the case due to having worked on it in her capacity as the United States Solicitor General under Barack Obama. This means that unlike in most Supreme Court cases, there is the possibility that the case would be tied, with the court's four most conservative justices ruling against the Texas policy and the four liberal justices ruling in the university's favor.
In the event of a tie, the lower court's ruling is affirmed. In this case, that would mean the University's policy is allowed to stand, which the appeals court had previously ruled. Questions during oral arguments from the conservative justices seemed to suggest that they, at least, would prefer to end the University's affirmative action policies.
Sources: uscourts.gov, New York Times