But lawyers for Fisher said that the top 10 percent plan had made UT one of the most diverse public universities in the nation, and that the school did not need to overlay the successful race-neutral program with another one that considered race. Furthermore, they said that the school is working toward an impermissible goal of using race in admissions to mirror the demographics of Texas, which they said amounted to "racial balancing."
While Fisher's lawyers argue that Grutter should be clarified or even overturned, supporters of UT's program take solace in Kennedy's opinion in Grutter. He ruled against the University of Michigan Law School program named in that case but said, "There is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity, but an educational institution must ensure, through sufficient procedures, that each applicant receives individual consideration and that race does not become a predominant factor in the admissions decision making."
Despite those words, Kennedy has never -- in his entire career on the bench -- voted in favor of racial preferences.
"That fact makes it hard to predict how Justice Kennedy will address this plan," said Cole. "If any plan would satisfy Justice Kennedy, it would seem that this one would because the university formulated its plan to meet the specific objections that Justice Kennedy had to the Michigan affirmative action plan."
Justice Elena Kagan will not participate in the case, because she dealt with it in her previous position as solicitor general.
Lawyers for Fortune 100 companies filed a friend of the court brief on behalf of the UT, arguing that those who have been educated in a diverse setting are "better equipped to understand a wider variety of consumer needs" and are "likely to generate a more positive work environment by decreasing incidents of discrimination and stereotyping."
Even the National Association of Basketball coaches said in briefs, "Our student athletes, and all of the students who attend our institutions, receive the best education when they are able to interact with others within a university community that is broadly diverse across its entire scope."
Filing on behalf of Abigail Fisher, three members of the U.S. Commission on Civil Rights point to empirical evidence that they said shows that race-preferential admissions policies do more harm than good. "If this research is right," argued lawyers for commission members Gail Heriot, Peter Kirsanow and Todd Gaziano, "We now have fewer minority science and engineering graduates than we would have under race-neutral admissions policies."
There are seven states that have laws banning the use of affirmative action in public universities (Arizona, New Hampshire, Michigan, Nebraska, Washington, California and Florida, according to the National Conference of State Legislatures). The University of California has filed a brief arguing that its inability to consider race has hurt the school's diversity. The university said it has experimented with different strategies to address underreprestend minority student populations, but that these measures have enjoyed only "limited success," and that the school, particularly, in its most highly ranked campuses, has not been able to reverse a decline in minority admissions and enrollment.
A decision in the current case, likely to come down sometime in early 2013, could have implications for private institutions that receive federal funding, as well as hiring decisions in public institutions.