George Leef, of the North Carolina-based Pope Center for Higher Education Policy, said it might be a long time before Fisher v. University of Texas at Austin is finally resolved. The case was remanded back to the appeals court, which may then choose to remand the case back to the trial court—in which case any decision would then have to climb all the way back up the appeals chain.
“It’s kind of too bad that it puts off resolution of the issues for at least a couple of years, I should think,” Leef said. “There’s quite a bit of skepticism in [Justice Anthony] Kennedy’s opinion that under a true strict scrutiny approach what the university was doing will survive, but they get to try again.”
Next term, the court will take up an affirmative action case from Michigan, but Leef said the issues in that case were not squarely the same as those raised by Fisher, so whatever the court decides in that case, it may not control what happens to Fisher’s lawsuit.
Leef praised the concurring opinion by Justice Clarence Thomas, which would have overturned prior Supreme Court rulings and found that any use of racial preferences in admission processes are unconstitutional.