Contributor, The Volokh Conspiracy

My wife Alison Somin has a post at the Federalist Society blog previewing the Fisher II affirmative action case currently before the Supreme Court. Alison works for the US Commission on Civil Rights, and is an expert on affirmative action in higher education:

“There are not many dull moments in the debate about race preferences in university admissions. Nevertheless, the issuance of the recent Fisher v. University of Texas case has often been painted as one of them,” were the beginning sentences of an essay I wrote for the Federalist Society’s Engage about Fisher I last year. It continued: “‘In with a bang, out with a fizzle’ is the title of one account of Fisher, and ‘Fisher’s big news: No big news’ is the headline of another. But perhaps this perennially hot debate has not cooled down after all, and Fisher is better understood as a cliffhanger—one akin to the ending of Frank Stockton’s 1882 “The Lady or the Tiger?,” which famously leaves the protagonist uncertain whether a beautiful woman or a starved tiger will emerge from behind the door he is about to open.”

Since then, several more chapters of this potboiler have been completed. In July 2014, a 2-1 panel decision upheld the University of Texas at Austin’s… use of race preferences in admissions as constitutional in an opinion that looked awfully like a tiger to critics of race preferences and a lady to preference supporters. It essentially brushed over the Supreme Court’s careful instructions on remand to scrutinize more closely whether UT’s use of preferences are narrowly tailored to achieve the constitutional goal of attaining the educational benefits of student body diversity. In light of this seeming failure to apply appropriate scrutiny, many observers predicted that the highest court would take up the Fisher case again—a prediction that turned out to be correct.

So will a lady or a tiger come out next June (or whenever it is that Fisher II is published?) The bad news for my fellow critics of race-preferential admissions is that I predict it will be a tiger—that the Supreme Court will not want to overturn Grutter and hold that student body diversity is not a compelling state interest that justifies racial preferences in admissions. The good news is that I speculate it will be a paper tiger—i.e. that the court will clarify that courts ought to be sufficiently rigorous in doing narrow-tailoring scrutiny that many real-world college affirmative action programs will fail the test.

For what it is worth, I agree with most of Alison’s careful analysis, particularly the prediction that the Court is likely to use Fisher II as an opportunity to send a signal to universities and lower courts that the use of racial preferences in admissions must be subject to rigorous, nondeferential judicial scrutiny.

I offered my own preview of Fisher II here. In this 2014 post, I briefly criticized the Fifth Circuit court of appeals decision which the Supreme Court is reviewing in Fisher II, and may well overrule.