Playing the Long Game: Fisher v. University of Texas and the Future of Race-Conscious Admissions Programs

As the United States Supreme Court begins its new term, one of the most watched cases will be Fisher v. University of Texas at Austin. For the second time, the Supreme Court will review the constitutionality of the University of Texas' race-conscious admissions program.

The University considers race in a limited number of admissions decisions. The vast majority -- approximately 80 percent -- of the University's incoming class is admitted through the Texas Top Ten Percent Plan, through which all Texas high school students who graduate in the top ten percent of their class must be admitted to one of the state's public colleges and universities.

For the remaining 20 percent of the entering class, the University of Texas conducts a holistic review of each applicant's personal achievements and experiences, considering race as one of many components of some applicants' self-identity.

Many commentators were surprised by the Court's decision to hear the case again. After all, the University's program closely mirrors race-conscious admissions programs upheld by the Court in the past, and the University of Texas's own program -- which gives race such a limited role in admissions decisions -- has been repeatedly upheld by the lower courts. Further, the plaintiff, Abigail Fisher, has moved on to graduate from Louisiana State University, and seems not to have a live dispute any longer. The reason is not crystal clear, but the answer may be in two cases working their way through the lower courts.

Last November, the same conservative activist supporting the Fisher litigation, as well as the successful challenge to the pre-clearance requirements of the Voting Rights Act of 1965, filed cases challenging Harvard University's and the University of North Carolina's consideration of race in their admissions programs.

The Harvard University challenge alleges that Harvard holds Asian-American applicants to a higher standard than all other applicants and caps the number of Asian Americans who can be admitted each year. In the challenge to the University of North Carolina's program, the plaintiffs seek to ban UNC's consideration of race and require that they employ a program similar to the Texas Top Ten Percent plan in order to achieve racial and ethnic diversity.

The stated goal of both the Harvard and UNC litigation is to reverse the Supreme Court's longstanding decision in Grutter v. the University of Michigan and ban the use of race-conscious admissions programs across the country. The relative success of the Texas Top Ten Percent Plan in achieving some level of diversity and questions around the admission of Asian-American students are both issues lurking under the surface in Fisher.

Could the Court have agreed to hear the Fisher case again in order to set up the Harvard and University of North Carolina plaintiffs for victory? The Supreme Court and conservative advocates have been known to play the long game. They have repeatedly co-opted the strategy employed by the NAACP in attacking segregation in our nation's public schools.

The NAACP spent years chipping away at the legal foundation of segregation case by case ultimately leading to the Court's landmark decision in Brown v. Board of Education. Now, that strategy is being employed by conservative advocates to strategically chip away at the laws and cases that have worked to protect people of color from discrimination and open the doors to equal opportunity for decades.

The conservative justices on the Supreme Court have embraced the strategy. Recently, we saw the Supreme Court tee up the gutting of the Voting Rights Act in Shelby County v. Holder with Justice Robert's opinion four years earlier in Northwest Austin Municipal Utility District No. 1 v. Holder. We saw the National Rifle Association spend decades teeing up the Supreme Court's decision in District of Columbia v. Heller striking down a law banning handguns in homes, which in turn opened the door to the Court's decision in McDonald v. Chicago, holding that the Second Amendment applies to all the states.

We should all be paying close attention to the Fisher case, not just because of what it means for future of diversity at the University of Texas, but because of the potential impact it could have on the ability of colleges and universities across the country to welcome student bodies that reflect the full diversity of America.