This week, the Supreme Court heard oral arguments in the historic affirmative action case Fisher v. University of Texas.  Plaintiff  Abigail Fisher sued the University of Texas after she was rejected by their undergraduate program, claiming that the school’s use of race as one of many factors in admittance is a violation of her 14th Amendment rights.

The last time the Supreme Court decided a case of affirmative action in the admissions to institutions of higher learning was in Grutter v. Bollinger.  “Just nine years ago in [Grutter,] the Supreme Court found that race conscious affirmative action in university admissions aimed at creating a diverse student body is constitutional, said Carlos Gonzalez, Professor of Constitutional Law at Rutgers Law School.

A lot has changed in nine years.  Today’s Court is much more conservative.  “It seems likely that the Court will either narrow or even overrule its Grutter decision, thus limiting or eliminating affirmative action in university admissions,” Gonzalez told EBONY.

There are a few distinctions between previous affirmative action cases and Fisher, he says: “The University of Texas maintains that the race conscious component of its admissions policy factors in race even less than the University of Michigan Law School admissions policy that the Supreme Court approved in Grutter v. Bollinger.”  The admissions process at the University of Texas used a numerical formula that factored in race among a myriad of other unique qualities of each applicant.

“[T]he University of Texas achieves a degree of racial diversity with its ten percent plan.  Because Texas public high schools tend to be racially segregated, the University admits a considerable number of Black and Latino students who graduate at or near the top of their high school classes at predominantly Black and Latino high schools.”  Texas’ ten percent plan is one factual difference between Grutter and Fisher that could make the difference.

The other distinction is the absence of Justice Sandra Day-O’Connor, who wrote the decision in Grutter.  “Though a conservative and a Republican appointee, Justice O’Connor is reported to have experienced gender discrimination upon graduation from Stanford Law School.  Some have speculated that this experience shaped her view of affirmative action,” notes Gonzalez.

Conservative Chief Justice John Roberts and O’Connor’s replacement Justice Samuel Alito are likely to rule against the University of Texas’ affirmative action policy based on their ideological leanings.  At Wednesday’s oral arguments, the justices framed the discussion around the question, “How much diversity is enough?”  There is no Justice O’Connor to swing the vote one way or the other and Justice Kennedy, who dissented in Grutter, is likely to rule with the conservative wing of the court Justices Roberts, Alito, and Clarence Thomas against affirmative action.

Professor Gonzalez emphasizes, “Though we will not know for sure until the Court hands down its opinion in Fisher next June, it may turn out that the key will lie not in the facts of the case, but in the changing personnel on the Court.”