Justice Scalia's Death May Impact Ruling in Long-Running Fisher Case

By Brittany Hackett, Communications Staff

The sudden death of Supreme Court Justice Antonin Scalia last week is likely to impact many major cases currently before the court, including the college admissions case Fisher v. University of Texas (UT) that challenges the constitutionality of UT’s admissions practices.

The conservative justice Scalia, 79, died on February 13 after suffering a heart attack. He joined the court in 1986 following an appointment by President Ronald Reagan.

The long-running Fisher case has been working its way through the courts for six years after Abigail Fisher, a white high school student in Texas who was denied admission to UT, brought the case forward, arguing that minority students with lower credentials had received admission to UT over her, due to one of their policies, and that this violated her rights under the equal protection clause of the 14th Amendment.

The Supreme Court in a June 2013 decision declined to provide new legal interpretation of the constitutionality of the usage of race as a consideration in admissions. Rather, the court remanded the case back to a lower appellate court for review. In the 7-1 majority opinion, Justice Anthony Kennedy referred to precedent requiring "strict scrutiny" of institutional admission policies that consider race, finding that the lower Court of Appeals did not apply this scrutiny to UT's policy, sending the case back for review. In other words, the lower court failed to determine whether UT's admission policy was developed and implemented in a way that is "narrowly-tailored" to achieve diversity.

Scalia joined Kennedy in majority opinion, and wrote in a one-paragraph concurring opinion: "The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception."

After it was sent back, the lower court again ruled in favor of UT and the Supreme Court again agreed to hear the case. Following Scalia's death, and Justice Elena Kagan's recusal from participation in the case, the remaining seven justices will rule on the case sometime this spring.

Scalia's vacancy also provides President Barack Obama with an opportunity to appoint his third Supreme Court justice during his two terms in office. He appointed Sonia Sotomayor in 2009 and Kagan in 2010.

Any appointment made by Obama is likely to face an uphill battle for Senate confirmation, as many Republican leaders have already announced intentions to block Obama's nomination. Senate Majority Leader Mitch McConnell over the weekend said the Senate would not vote on Scalia's replacement until after the 2016 election when a new president can make the appointment.


Publication Date: 2/17/2016

You must be logged in to comment on this page.

Comments Disclaimer: NASFAA welcomes and encourages readers to comment and engage in respectful conversation about the content posted here. We value thoughtful, polite, and concise comments that reflect a variety of views. Comments are not moderated by NASFAA but are reviewed periodically by staff. Users should not expect real-time responses from NASFAA. To learn more, please view NASFAA’s complete Comments Policy.

Related Content

NASFAA Policy Update - May: NASFAA Policy Update


NASFAA Policy Update - December: NASFAA Policy Update


View Desktop Version