Last year, I wrote an essay for the Federalist Society’s Engage magazine about the Supreme Court’s Fisher v.Texas decision which said, “There are not many dull moments in the debate about race preferences in university admissions. Nevertheless, the issuance of the recent Fisher v. University of Texas case has often been painted as one of them. ‘In with a bang, out with a fizzle’ is the title of one account of Fisher, and ‘Fisher’s big news: No big news’ is the headline of another.  But perhaps this perennially hot debate has not cooled down after all, and Fisher is better understood as a cliffhanger—one akin to the ending of Frank Stockton’s 1882 “The Lady or the Tiger?,” which famously leaves the protagonist uncertain whether a beautiful woman or a starved tiger will emerge from behind the door he is about to open.”

Well, today the Fifth Circuit gave us a glimpse at how this cliffhanger might end. A 2-1 panel decision upheld the University of Texas at Austin’s (“UT”) use of race preferences in admissions as constitutional, meaning that this opinion looks awfully like a tiger to critics of race preferences and a lady to preference supporters. Yet, perhaps in true nineteenth-century potboiler style, the story is not over yet. Many commentators predicted when the Supreme Court issued last year’s Fisher opinion that the case was likely to return to the nation’s highest court. Indeed, only Justice Breyer was in the majority of both Grutter v. Bollinger (the Court’s last major decision on race preferences in higher education) and Fisher; Grutter dissenters Kennedy, Scalia, and Thomas joined the majority in Fisher, and Justice Ginsburg was in the majority in Grutter but dissented in Fisher. All of these switched positions suggested that most of the Court understood Fisher as requiring scrutiny more stringent than most commentators previously understood Grutter to require.

Yet the Fifth Circuit majority opinion essentially brushes over the Supreme Court’s careful instructions on remand to scrutinize more closely whether UT’s use of preferences are narrowly tailored to achieve the constitutional goal of attaining the educational benefits of student body diversity. It does address some of the race-neutral methods that UT tried to use to achieve student body diversity and notes why UT considered their results unsatisfactory. And it notes that UT’s system of holistic review also may have made its student body more diverse along non-racial dimensions. The Supreme Court’s decision in Fisher holds that courts may defer to universities’ judgment that student body diversity constitutes a compelling interest, but that they must apply strict scrutiny when deciding whether a particular university’s use of race preferences is narrowly tailored to achieve that goal. The Fifth Circuit’s opinion is essentially deferential in scrutinizing both ends and means and thus in tension with the Supreme Court’s earlier decision. There is thus a significant chance that the Court will grant certiorari a second time.

To be fair, part of the difficulty that faced the Fifth Circuit is that there is inherent tension between Fisher’s requirements of deference to universities’ ends but strict scrutiny of their ends. If what constitutes a compelling interest in the diversity context is loosely defined, then lots of programs are potentially narrowly tailored to meet it. On the other hand, the more narrowly what qualifies as a compelling interest vis-a-vis student body diversity is defined, the less likely  it is that anything will be narrowly tailored to meet it.  (See also this essay by Gail Heriot at pp. 87-88 for a further elaboration of this argument.) Indeed, this tension seems to explain why the majority and the dissenting judge came to different conclusions. The majority essentially accepted UT’s assertions that it had a compelling interest in student body diversity at face value and had accordingly little difficulty in concluding that its use of race was narrowly tailored to achieve that compelling interest.

But Judge Garza, the lone judge in dissent, wanted to understand with greater precision the nature of the university’s compelling interest in diversity. He found that he could not: using Grutter‘s language , the university asserted that it sought a “critical mass” of racial and ethnic minority students. But it remained painfully unclear what exactly it sought to achieve in attracting this “critical mass” of students. At times, the university seemed to be suggesting that it sought what Garza called “quantitative diversity” — numbers of minority students sufficient to make sure that minority students did not feel isolated on campus. But UT declined to state exactly how many racial and ethnic minority students are necessary to stave off this sense of isolation, meaning that it is extremely difficult for a court to assess whether UT’s plan is indeed narrowly tailored to accomplish this goal. Alternatively, at times UT seemed to be asserting that its racial preferences increased “qualitative diversity,” or “diversity within diversity” — that the use of racial preferences attracted minority students who were a more interesting and vibrant group than those admitted under the Ten Percent Plan. But UT had never attempted to assess the vibrancy or “diversity within diversity” of the students admitted under the Top Ten Percent Plan, so one cannot say that UT’s race preferences are narrowly tailored to achieve “qualitative diversity” either. It may be necessary for the Supreme Court to clarify how lower courts are to do this ends/means analysis — and if the tension between deference to ends and rigor to means is too great, it is possible that the Court should re-evaluate the viability of the Fisher approach altogether.