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The Supreme Court punted today in the affirmative action case, Fisher v. University of Texas at Austin, sending the case back to the Fifth Circuit — and possibly even the district court — for a reconsideration of the university’s affirmative action policy under a strict scrutiny standard.

In the 7-1 decision by Justice Anthony Kennedy, the Court said that “because the Fifth Circuit did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and Regents of Univ. of Cal. v. Bakke, its decision affirming the District Court’s grant of summary judgment to the University was incorrect.”

“[S]trict scrutiny does require a court to examine with care, and not defer to, a university’s ‘serious, good faith consideration of workable race-neutral alternatives,’” Kennedy added.

Earlier in the term, the Court had already signaled that it would be revisiting its landmark 2003 decision validating affirmative action in Grutter v. Bollinger by agreeing to hear a new challenge, Schuette v. Coalition Against Affirmative Action, next term.

That means that the Court may render a decision on the merits of affirmative action policies next term even before the Fisher case makes its way again through the lower courts.

The composition of the Court has changed since Grutter, with Justice Sandra Day O’Connor, who wrote that opinion, retiring and the more conservative Justice Samuel Alito taking her place.

Meet the man who, by tracking down the plaintiffs and helping fund two of the most closely watched cases before the U.S. Supreme Court this term , is on a mission to change the rules of race in this country. 

He is Edward Blum, a little-known 60-year-old former stockbroker.

Working largely on his own, with the financial support of a handful of conservative donors, Blum sought out the plaintiffs in the Fisher and Shelby County cases, persuaded them to file suit, matched them with lawyers, and secured funding to appeal the cases all the way to the high court. Abigail Fisher is the daughter of an old friend of Blum’s – a man who happened to call when Blum was in the midst of a three-year search for a white college applicant who had been rejected despite solid scores. Blum eventually got Shelby County to file suit after trolling government websites and cold-calling a county official.

Blum introduced Fisher’s father and Shelby County officials to the same high-priced but politically sympathetic Washington lawyers, who agreed to work for a cut rate to be billed to Blum’s backers. Neither Fisher nor Shelby County is paying to fight the cases that bear their names.

Over the past 20 years, Blum has similarly launched at least a dozen lawsuits attacking race-based protections. In addition to the Fisher and Shelby County cases, two other Blum-backed cases reached the Supreme Court. One struck down majority-black and majority-Latino voting districts in Texas. The other prompted the court to suggest it might eliminate a major portion of the Voting Rights Act of 1965, which the conservative-majority bench may now be poised to do in the Shelby County case.

College basketball coaches make a cameo appearance at the U.S. Supreme Court this week in support of affirmative action in college admissions when, on Wednesday, the Court hears argument in one of the most-closely watched cases of the term, Fisher v. University of Texas at Austin.

Texas automatically accepts residents who finish in the top ten percent of their high school class and then considers race as one of several factors in admissions for the remainder of the class. Abigail Fisher — a white applicant in 2008 — claims that she would have been accepted but for the consideration of race.

A divided panel of the 5th U.S. Circuit Court of Appeals rejected her claim, saying that the University’s admissions policy was consistent with the Supreme Court’s 2003 ruling involving the University of Michigan Law School and allowed as a means of achieving a critical mass of minority students at the University. Read More