This time those same five justices are likely to strike down UT’s plan entirely. In Fisher I, Kennedy wrote, “the reviewing court must ultimately be satisfied that no workable race neutral alternatives would produce the educational benefits of diversity.” The fatal flaw with the UT program, opponents say, is it’s opaque: University officials can’t say what role race played in any specific admission, and therefore can’t say whether the program actually advances the “educational benefits of diversity.” Admissions officers grade students on their academic performance as well as “personal achievement,” including race, and then average the two scores.

“They’ve designed this program quite deliberately to be unaccountable and non-transparent,” said Andrew Grossman, an associate with Baker Hostetler in Washington who wrote a brief for the libertarian Cato Institute, where he’s also a fellow. “The hallmark of strict scrutiny is the court has to satisfy itself the program is narrowly tailored and achieves the government’s objectives.”