Three takeaways from Wednesday's Supreme Court hearing on affirmative action

A viral comment, a key swing vote, and potential effects

Kristin Tyndall, EAB Daily BriefingKristin Tyndall, editor

The Supreme Court heard oral arguments Wednesday in the Fisher v. University of Texas case—and their ruling could have a major effect on affirmative action policies in college admissions. Here are three of the most important takeaways from the hearings.

Not familiar with the case? Get the background here first

1. Justice Scalia argued that affirmative action hurts black students—but observers don't necessarily agree.

"There are those who contend that it does not benefit African-Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less advanced school, a slower track school where they do well," Scalia said.

According to Scott Jaschik at Inside Higher Ed, Scalia is reviving an old "overmatching" argument historically used by critics of affirmative action—and condemned by supporters of the policy.

Scholars have studied mismatch for more than a decade, writes Becky Supiano for the Chronicle of Higher Education. Some have found that, in certain contexts, less-academically prepared students did have higher attrition rates, but other research found that all students were more likely to graduate at more-selective institutions, no matter their academic credentials. And given the political implications of the topic, it's no surprise that it continues to be extremely controversial.

Scalia's comments have received extensive coverage, but Jaschik points out they probably don't give us that much insight into the ultimate ruling.

2. It could all come down to one vote—and even a tie.

Supreme Court analysts say the case is likely to split the court along party lines. Four conservative justices are expected to vote against the affirmative action policy. Three liberal justices are expected to vote in favor of it. Justice Elena Kagan recused herself because she worked on the case in a previous job at the Justice Department before joining the Supreme Court.

But Justice Anthony Kennedy's vote is harder to predict. Nina Totenberg of NPR says Kennedy is "deeply skeptical" of affirmative action, but has also argued in the past that colleges have a vested interest in creating a diverse student population.

If Kennedy votes in favor of affirmative action, he could create a rare 4-4 tie in the court. In that event, "the lower court opinion is affirmed without creating any Supreme Court precedent," Jeffrey Fisher, a Stanford University law professor, told Business Insider over the summer.

The lower court has now ruled in favor of the university—and its affirmative action policy—twice.

3. How much the ruling will affect other colleges is an open question.

Two prior Supreme Court cases established precedents for allowing colleges to use affirmative action in admissions—and the court would have to address these in the Fisher case to make any sweeping changes, as Libby Nelson points out for Vox.

By the numbers: What student protesters actually want

In one of the court's last major rulings on affirmative action, the majority opinion suggested that affirmative action policies shouldn't be necessary forever. Justice Sandra Day O'Connor proposed an expiration date of about 25 years. But that case, Grutter v. Bollinger, was just 12 years ago in 2003.

Given all this, potential rulings in the Fisher case vary widely, Nelson concludes. The justices might go big—deciding to re-examine whether affirmative action is constitutional. Or they might simply send the case back to the lower court once again (Jaschik, Inside Higher Ed, 12/10; Supiano, Chronicle of Higher Education, 12/9; LoGiurato, Business Insider, 6/29; Totenberg, NPR, 12/9; Nelson, Vox, 12/9).

Thoughts on the story? Tweet us at @eab_daily and let us know.

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