Whether the University of Texas' admission policy passes constitutional muster is now in the hands of the 5th U.S. Circuit Court of Appeals. The New Orleans-based court heard oral arguments in Fisher v. Texas this week, the suit two white students brought against the school when they were denied entry to its undergraduate program.

The case is the first to challenge affirmative action policies at an undergraduate university since Grutter v. Bollinger — the seminal 2003 U.S. Supreme Court decision on the University of Michigan Law School's affirmative action policy. It attracted 30 amicus briefs from around the country, including one from the Obama administration in support of the state's arguments.

Burt Rein, the D.C.-based attorney for the plaintiffs, Solicitor General James Ho, who argued the case for the state, and Joshua Civin, the attorney for UT's Black Student Alliance, answered questions from the three judges for more than an hour. The plaintiffs, Abigail Fisher of Sugar Land and Rachel Michalewicz of Buda, believe the school violated the constitution's equal protection clause and violated the precedent set forth in Grutter.

Rein argued that UT had achieved diversity with a race-neutral policy — referring to the top 10 percent rule, which the Legislature instituted in 1998 — and that Grutter did not allow it to return to using race as a factor in the admissions policy in 2004. Ho called Rein's criticism of UT's policy as "white versus nonwhite binary conception of race that the Supreme Court rejected in Grutter," saying Rein's argument turned the case "on its head."

Supporters of affirmative action fear the case could provide an opportunity for the U.S. Supreme Court to narrow the Grutter decision to exclude more forms of race-based admission. The makeup of the court has changed, and Grutter was a close vote that went against the court's more conservative justices at the time.

Fisher and Michalewicz now both attend other universities, and avoid contact with the press. Edward Blum, founder of the D.C.-based Project for Fair Representation, the group that handpicked Fisher and Michalewicz as plaintiffs and is paying their attorneys, told the Texas Tribune that's because they aren't out to become "national figures in their cause."