NEXT week, the Supreme Court will hear Fisher v University of Texas II, an important case asking how race may fit into admissions decisions at public universities. The Roman numerals denote this as the second time Abigail Fisher’s lament against the University of Texas (UT), which denied her admission to its flagship campus in Austin seven years ago, will be aired before the justices. In the sequel, the characters and the conflict are unchanged. Ms Fisher, a white woman who has since graduated from Louisiana State University, still claims that UT violated the Equal Protection Clause of the 14th Amendment when it rejected her under a race-conscious admissions policy. The University responds that its consideration of race is a modest factor in a holistic analysis of about a quarter of its candidates that previous Supreme Court cases permit. It insists that this limited use of race is necessary to ensure the benefits that flow from a diverse student body. Why the repeat performance? When the Supreme Court last ruled on Ms Fisher’s case, the justices managed to avoid confronting the heart of the issue. They simply asked the Fifth Circuit Court of Appeals, which had upheld UT’s admissions policy, to have a closer look. Now that the Fifth Circuit has revisited the case and, once again, found the policy to be constitutional under “strict scrutiny”, the most exacting level of judicial analysis, the Supreme Court is set to decide if the lower court has acquitted itself well in that task. This time, the justices will find it more difficult to punt on the crux of the matter.

The central questions flowing through the parties’ briefs are these: what is diversity? And what are the constitutionally sanctioned means by which universities may attempt to cultivate diversity in their student bodies? Since 1997, UT has admitted about 75 percent of its students via a Top 10% plan, according to which the highest decile of graduates in each of Texas’s public high schools gain automatic admission to all state-funded universities. The rule was adopted in 1997 as a way to boost minority representation on Texas’s campuses, and it did have that effect. But critics charged that the change crowded out talented students (of all races) in high-performing high schools and made it possible for students to game the system by gravitating to schools where the competition was weaker.

In 2005, to further enhance campus diversity in its review of candidates who did not qualify under the Top 10% rule, UT began considering applicants’ race as one factor on a list of “special circumstances” that make up one element of their “personal achievement score” that, in turn, constitutes one of three factors in their “personal achievement index”, or PAI. The PAI is consulted along with test scores and class rank in the “academic index” (AI) in determining admission, making race a factor of a factor of a factor of a factor in the selection process.

Ms Fisher says even this highly proscribed consideration given to race is unconstitutional. The University, she contends, “failed to show that its pre-existing race-neutral admissions program could not achieve the desired level of diversity”. In fact, due to the minority-boosting effects of “the Top 10% Law, UT is one of the most diverse public universities in the country”. The University responds with a dose of incredulity that Ms Fisher is urging the Supreme Court to inhabit a “Bizarro Equal Protection World” where it is a constitutional sin to undertake an “individualised and modest consideration of race” leading to “ultimate admissions decisions” that do not turn exclusively on a candidate’s race.

It is indeed a rather bizarre position fueling the challenge to UT's admissions policy. Ms Fisher objects to the use of race in admissions decisions because the colour of one’s skin has nothing to do with academic credentials. But she is apparently fine with an admissions policy that boosts minority enrollment without taking any account of the character or qualifications of the individuals gaining admission. As UT writes in its brief, “[p]etitioner’s view that UT must ignore differences among people of the same race, and treat African-American and Hispanic students as a fungible commodity in gauging diversity, demeans the dignity of those individuals and is starkly at odds with the Court’s equal protection jurisprudence”. The university is also correct to note the irony in Ms Fisher’s argument that “UT’s consideration of race is too modest to be constitutional”. Based on the court’s rulings upholding limited race-based affirmative action in the Bakke and Grutter cases from 1978 and 2003, respectively, “a modest impact is exactly what to expect from the kind of individualised and holistic review...in which race does not predominate but instead plays only a nuanced and limited role in admissions”.

The numbers may be modest, but the effect on campus culture, UT says, is not. Texas high schools are highly segregated, making the Top 10% rule a rather blunt instrument. The university supplements that rule to secure “diversity within diversity”. It seeks students with “a different set of experiences and backgrounds to add to classroom debate, help to challenge racial stereotypes, and often have already demonstrated an ability to cross racial barriers and manoeuvre outside their ‘bubble’”. The “key point” Ms Fisher ignores, UT argues, is that the university “does not seek minority students with any particular background” but a “student body that includes both minority—and non-minority— students with the variety of backgrounds and experiences that is necessary to achieve all of diversity’s benefits".

Of the dozens of amicus briefs on both sides of this dispute, one of the more remarkable is the contribution from a list of Fortune 100 companies from Aetna to Xerox arguing that it is “a business and economic imperative” that “all of their university-trained employees have had the opportunity to share ideas, experiences, viewpoints, and approaches with a broadly diverse student body”. Diversity isn’t just a matter of getting people with faces of different hues in a room, the companies say. Admissions shouldn’t be “a simplistic numbers game”. The companies themselves seek “the most qualified group of employees, while taking into account all of the characteristics of those employees that will enrich [their] workplaces and strengthen their businesses”.

The justices will dive into the thicket on December 9th.