Author: David B. Weisenfeld, XpertHR Legal Editor

A clearly divided Supreme Court took a skeptical view today of the University of Texas at Austin's use of race as a "factor" in admissions. While the case arises in the educational realm, the implications for employers in Fisher v. University of Texas cannot be missed.

For starters, any time employer groups and the military team up with the Americans with Civil Liberties Union, it's a case of rather "strange bedfellows" to say the least. However, that's precisely the situation in this affirmative action lawsuit brought by Abigail Fisher against Texas.

A flurry of groups from the employment realm have sided with the university in defending the legality of its affirmative action plan. They fear that a ruling for Fisher not only also would spell trouble for employer-initiated affirmative action programs, but that it would negatively impact workplace diversity.

However, this array of support for Texas may not be enough. During today's arguments, Justice Anthony Kennedy expressed concern that the Texas plan is taking both minority candidates who are underprivileged into account and minorities who are not. Meanwhile, Chief Justice John Roberts asked a series of increasingly pointed questions to Texas attorney Gregory Garre that left little doubt where he stood.

Fisher argues that she had lesser job prospects after graduating from college because her rejection from Texas caused her to attend a less prestigious university. Texas countered that she would have been denied admission regardless of race, and suggested Fisher did not have standing to bring the claim as a result.

When the Supreme Court last considered an affirmative action case of this magnitude in 2003, it upheld the University of Michigan's plan by a 5-4 vote in Grutter v. Bollinger. But the author of that historic opinion, Sandra Day O'Connor, has since been replaced by the more conservative Justice Samuel Alito.

While not dispositive, that shift in the Court's makeup signals that it may take a more critical view of affirmative action.

The Fifth Circuit Court of Appeals had upheld the Texas plan. But a Supreme Court reversal could cause employers to think twice about their own affirmative action efforts. A decision is expected before the end of the Court's term in June 2013.