Lawyers for Abigail Noel Fisher, the Texas woman who has waged a prolonged challenge to the use of race in selecting entering students for the University of Texas at Austin, filed a new case in the Supreme Court on Tuesday.   It is a renewed complaint that the U.S. Court of Appeals for the Fifth Circuit got the issue wrong — on the second try as well as on the first.

The petition (a docket number has not yet been assigned) presented this question: “Whether the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013).”

When the case was before the Court nearly two years ago, the Fifth Circuit Court was told to reconsider a prior ruling upholding the validity of a Texas admissions policy that is partly based on race.  The “Fisher I” ruling spelled out a new constitutional formula that appeared to impose a more demanding test that public colleges and universities had to meet to support any use of race in the selection of students.

The Fifth Circuit Court, insisting that it was using that new test, once again ruled that the flagship university for the state of Texas could go on using its admissions formula.  Under that formula, race is not the sole factor on who gets chosen, but it is a significant one.

Ms Fisher, a white woman, was denied admission to the university, and she has contended that the denial was based on race.  Her case has continued in the courts on the premise that she had a legal right to file and continue her case, even though she graduated from a different university and would not be a candidate again to enter the University of Texas