The affirmative action plan used by the University of Texas has been under intense scrutiny in the past few days following the hearing of Fisher v University of Texas II. The lawsuit began in 2012 after Abigail Fisher was rejected by the University, and has subsequently returned to the U.S Supreme Court after an appeal. The simple fact that the case has once again arrived at the Supreme Court suggests that opinions of the Supreme Court Justices may be swinging to the abolition of affirmative action.

The basis of Fisher’s argument is that her admittance into the University was rejected on the foundation of her race. She argues that less academic high school classmates were accepted due to the colour of their skin and not their intelligence. In effect, Fisher is insinuating that the University of Texas have discriminated in order to produce diversity among the campus. However, the court are not disputing that a wide range of backgrounds would become a disadvantage for the University. In fact, they go as far to say that a “path to leadership” should be open to students of all backgrounds. In juxtaposition, however, the courts have held that Universities “can only use race when it is “necessary to promote diversity”.

When deciding on applicants to accept into a university, Texas has employed the ‘Top 10%’ state law. In order to attempt to increase minority influence within the school, a state law was created to guarantee any student in the top 10% of the class from any high school a place at the campus. The reason that this device increases racial diversity is due to many of the local high schools being particularly segregated in terms of ethnicity. For those who did not fall within this fraction, a series of tests were created to choose candidates, including race as a contributory factor. Furthermore, studies have shown that where affirmative action has been banned, minority admissions have reduced. For example, after Florida outlawed the plan in 2001, African-American freshman dropped from 12% to 7%

In the last occurrence that the court saw this case in 2013, it avoided giving a direct decision and directed the case back to an appeals court for reconsideration.

Those opposed to affirmative action argue that “UT has never been clear about precisely why it needs to use racial preferences” (Bert Rein, a Washington DC lawyer representing Fisher). On the other side, the University says that it seeks the flexibility to admit minority students although they may not be within the top 10%. They argue that these students will be able to bring valuable experiences which are crucial for learning.

Many of the conservative court judges fired sceptical questions towards the lawyers defending the school, including Chief Justice John G. Roberts who questioned “What unique perspective does a minority student bring to a physics class?” Justice Alito said that the first stage to admittance (Top 10%) should be enough to ensure racial diversity. He went on to tell the lawyer for University, Gregory G. Garre “Your underlying claim is that there is something deficient about the top-10 admittees.”.

However, on the other hand, Justice Stephen G. Breyer described that “People in the universities and elsewhere are worried,” and that the Supreme Court will “kill affirmative action through a death by a thousand cuts.” The representative for the University, Garre, said “now is not the time and this is not the case to roll back student body diversity in America”. Unusually, the oral arguments continued for 95 minutes, surpassing the standard length by 35. Moreover, back in 2003, Former Justice Sandra Day O’Connor set the timer after the case of Grutter v Bollinger 539 U.S. 306 (2003), suggesting the affirmative action should not be a necessary tool within 25 years. A sense that the Justice’s impatience was beginning to boil could be seen through Chief Justice John Roberts. His message was clear: “Are we going to hit the deadline? Is this going to be done … in 12 years?”

The case of Fisher v the University of Texas is an incredible pivotal point with regards to US legislation, which has the potential to completely alter a foundation that has been slowly built. In fact, the subject stretches far beyond a matter of law and into a matter of attitudes and opinions. In effect it demonstrates how far society has moved, from 1950 where the first African-American student was granted access to the school, to now, a national debate on how we should ethically select a wide array of students from all different walks of life, who rightly deserve the opportunity to receive the best education. In my own view, the matter is unusual as both parties, in certain aspects, are carrying the same ideology: to try and gain a level playing field for all. However, with no outstanding alternative to the current solution, it does seem like the future has a misty path ahead.

Unfortunately, Justice Kennedy did not feel that an accurate decision could be made at the hearing on Wednesday. He has called for a further collection of evidence because “The litigants, and frankly this court, have been denied the advantage and the perspective that would be gained if there would be additional fact-finding.”

The case is expected to be decided in at the end of the 2015–2016 term.