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Theories Abound With Race-in-Admissions Ruling Still to Come

The U.S. Supreme Court is entering June with the entire education community anxiously awaiting a decision in Fisher v. University of Texas at Austin (No. 11-345), a case that may determine the fate of the use of race in college admissions.

The case, which involves the flagship university's limited consideration of race to go along with the Top Ten Percent plan for its undergraduate admissions, was argued Oct. 10, during the second week of the court's term. It is the only case yet to be decided from the first two months of arguments.

The lengthy gestation period has ramped up speculation among high court observers about the likely outcomes of the case. (Admittedly, much of this chatter has taken place among reporters with too much time on their hands in the Supreme Court press room.)

Here are several possible scenarios:

A Kennedy Decision is Forthcoming

Justice Anthony M. Kennedy is widely viewed as the key justice in the Fisher case. The court's most conservative members—Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr.— are viewed as hostile to any consideration of race in education. Kennedy's views have been more nuanced, as reflected in his controlling concurrence in Parents Involved in Community Schools v. Seattle School District, the 2007 case in which he said school districts could sometimes broadly take race into account when drawing school attendance boundaries.

Every other justice besides Kennedy has written an opinion from a case argued during the October session. That leaves many observers thinking Kennedy is drafting the opinion in Fisher. The justices try to make sure that assignments to draft majority opinions are divvied up somewhat evenly for each argument session. So at this time of year, with about four weeks left in the court's term, observers use a process of elimination to identify likely authors of outstanding opinions. This tactic does have its pitfalls, since there are some argument sessions with more than nine cases to be divvied, and justices originally assigned an opinion can lose their majority. But the theory that Kennedy was assigned the Fisher opinion seems plausible.

If Kennedy is writing the opinion, the long delay could simply mean there has been much back and forth among the justices over majority, concurring, and dissenting opinions. But there are other possible outcomes.

A Tie Vote

The Fisher case was heard by only eight members of the court, with Justice Elena Kagan recused. (The presumption is that she had some involvement with the federal government's position in the case while she was U.S. Solicitor General in 2009 and early 2010.)

That means the justices could have tied 4-4. But if that had been the case after oral arguments in October, the normal practice would have been to announce that outcome within a matter of days. And if that had happened, the lower court's opinion would have been upheld "by an equally divided court," but with no opinion and no precedential value. That would have been a victory for the university, since the U.S. Court of Appeals for the 5th Circuit, in New Orleans, upheld its race-conscious admissions system.

So, is a tie still a possibility eight months down the road? In theory, the justices could have divided 5-3 (or some other lineup) at their conference vote after arguments, but evolved into a 4-4 tie later in the process. It's not clear whether the court's own internal rules require an affirmance without an opinion whenever a tie is reached, or whether a late-in-the-game tie allows for some other option, such as ordering reargument.

A Dismissal or Ruling on Jurisdictional Grounds

This possibility centers on arguments presented to the Supreme Court long before it even accepted review of the Texas case—that there was no live controversy because Amy Fisher, the white student who challenged the UT admissions program, has graduated from another university and has no genuine stake in the controversy.

The justices brushed aside those arguments in accepting Fisher's case for appeal, though at oral arguments some of the court's more liberal members, including Justices Ruth Bader Ginsburg and Sonia Sotomayor, did raise the jurisdictional questions.

Fisher's lawyer, Bert W. Rein of Washington, told the justices at oral arguments that the fact Fisher is seeking a refund of her $100 admissions application fee for UT was enough to keep the case a live controversy. Justice Scalia expressed sympathy for that view during oral arguments.

Still, the Supreme Court is traditionally deeply concerned about deciding only cases that are properly before it, and many major appeals have fizzled on standing or other jurisdictional grounds long after oral arguments.

Reargument Next Term?

A more recent theory to emerge among some court watchers relates to the fact that the justices have granted review of another case involving affirmative action in higher education.

In Schuette v. Coalition to Defend Affirmative Action (No. 12-682), to be argued next term, the court agreed to review a federal appeals court ruling that struck down a 2006 Michigan ballot initiative that bars the use of racial preferences at state colleges and universities.

Many legal experts believe that although Schuette relates to affirmative action policies in higher education, the legal question about whether a minority group is being disadvantaged at the ballot box is distinct enough from the basic question in Fisher to explain why the justices didn't simply hold the Michigan appeal for the outcome of the Texas case.

Still, the new theory is that the court would order new arguments in Fisher and consider it next term along with the Michigan case. One fly in the ointment for this theory is that the same arithmetic would be at play for such a reargument, since Justice Kagan would still be recused. And she is also recused from the Michigan case, so there will be only eight justices deciding that case, too.

* * *

These are not the only outcomes of course. For one thing, I didn't even mention the possibility that Justices Ginsburg, Sotomayor, or Stephen G. Breyer might be writing a majority opinion upholding the University of Texas admissions program. But for that possibility, they would have to have Justice Kennedy and one of the court's conservatives on their side.

The court next issues opinion on Monday, June 3.

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