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Why The Hold-up?

Supreme Court stays mum on Abigail Fisher affirmative action case

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Abigail Fisher wanted to attend the University of Texas at Austin but ended up at Louisiana State University instead.  GlobalGrind.com

It's been more than a year since University of Texas at Austin reject Abigail Fisher graduated from Louisiana State University, and it's been eight months since Fisher's case alleging racial discrimination went before the U.S. Supreme Court. Experts expected an opinion much sooner and the rumor mill is churning out plenty of potential reasons for the delay. 

A white student from the Houston area suburb of Sugar Land, Fisher had a 3.59 GPA but was not in the top 10 percent of her graduating class. Since 1997, Texas students graduating in the top 10 percent of their high schools have been guaranteed admission to state universities. 

She was denied admission to UT in 2008 and brought suit against the university alleging that her race was an unfair factor in her rejection. This is a possibility, given that in 2004 the University of Texas revamped its admission policy to allow race to be a factor in the holistic review of students outside the top 10 percent. 

 The delay could be as simple as a divided opinion, Mark Walsh of Education Week surmises, or it could be something more unusual and complicated. 

The Supreme Court heard oral arguments on Fisher v. The University of Texas at Austin on October 10, just two weeks into the court's term.

Mark Walsh at Education Week offers four theories for the lengthy delay. For starters, Walsh believes that Justice Anthony M. Kennedy could be the key to case. Kennedy has previously said that school districts could sometimes take race into account when drawing attendance boundaries, so there's wiggle room in his interpretation of affirmative action. 

"Every other justice besides Kennedy has written an opinion from a case argued during the October session," Walsh writes. "That leaves many observers thinking Kennedy is drafting the opinion in Fisher."

The delay could be as simple as a divided opinion, Walsh surmises, or it could be something more unusual and complicated. 

Since Justice Elena Kagan recused herself from the case, a 4-4 tie is possible. Walsh says this would equate to a victory for Texas, as the New Orleans U.S. Court of Appeals for the 5th Circuit approved a race-conscious admissions system. Ties are usually identified early on, but the justices could have evolved from a majority opinion to a tie in the course of eight months. 

Walsh also believes the case could be dismissed as Fisher has long since graduated and would not benefit from the ruling. Her attorney maintains that Fisher's $100 admission application fee is enough to keep the case current but Walsh has his doubts. 

"Many major appeals have fizzled on standing or other jurisdictional grounds long after oral arguments," Walsh writes. 

Lastly, the case could be scheduled for reargument next term. With just a few weeks remaining in the Supreme Court's docket, the justices might decide to table the decision until another similar affirmative action case is argued in October. 

A case out of Michigan, Schuette v. Coalition to Defend Affirmative Action deals with a 2006 ballot initiative barring the use of racial preferences at state colleges and universities.

"The new theory is that the court would order new arguments in Fisher and consider it next term along with the Michigan case," Walsh says. 

The court returned its first June ruling on Monday when it decided that DNA samples could be taken from anyone who is arrested. 

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