Supreme Court Keeps Affirmative Action, Sidesteps Issue

There has hardly been a Supreme Court session with a conclusion as highly anticipated as this year's. And one of the decisions keeping all Court watchers on the hook has been Fisher v. University of Texas which was argued last year and was predicted to be the defining affirmative action decision of this decade.

The Houston Chronicle explains that the case began when Abigail Fisher of Sugar Land, Texas filed a lawsuit after she was turned down for admission to the Austin campus of the University of Texas. Fisher argued that the decision was motivated by race – which is used by UT as a factor in enrollment decisions for students who fail to qualify under the automatic admissions standards.

Since the court granted certiorari and heard oral arguments last year, predictions on how the justices would rule ran the gamut. UT and many supporters of affirmative action policies believed that the court would use the opportunity to overrule a previous decision – Grutter v. Bollinger – to do away with race-based affirmative action altogether. Some thought that the Court might punt, ruling that Fisher didn't have standing because she wouldn't have been admitted to UT even had race had played no role in admissions decisions at all.

In the end, in the 7-1 decision – with Ruth Bader Ginsburg dissenting and Elena Kagan recusing herself – the Court did neither. The decision can best be thought of as "threading the needle." Race-based affirmative-action admissions policies can remain, but they will need to meet a much higher burden to prove that they're legal.

Amy Howe of the SCOTUSBlog explains:

Today a broad majority of the Court reinforced that affirmative action must be strictly reviewed, but it did not outlaw those programs. In an opinion that required only thirteen pages, the Court explained that a university's use of race must meet a test known as "strict scrutiny." Under this test, a university's use of affirmative action will be constitutional only if it is "narrowly tailored." The Court in Fisher took pains to make clear exactly what this means: courts can no longer simply rubber-stamp a university's determination that it needs to use affirmative action to have a diverse student body. Instead, courts themselves will need to confirm that the use of race is "necessary" – that is, that there is no other realistic alternative that does not use race that would also create a diverse student body. Because the lower court had not done so, the Court sent the case back for it to determine whether the university could make this showing.

The lower courts will get another chance to reconsider the UT policy, with the new tougher standard in mind.

The majority opinion was joined by Chief Justice John G. Roberts, Jr., as well as Justices Stephen G. Breyer, Sonia Sotomayor and Samuel A. Alito. In a brief concurring opinion, Justice Antonin Scalia made clear that had Fisher asked for the court to overturn Grutter, Scalia would have been perfectly willing to do so. A similar view was expressed by Justice Clarence Thomas, who in his recent autobiography blamed affirmative action for his failure to land a job after graduating with a law degree from Yale Law School.

Ginsburg argued in her dissent that the lower courts already looked at whether other admissions policies in which race was not a factor would serve UT just as well in its goal to create a student body that better reflected the demographic makeup of the state. In his analysis of the decision, Lyle Denniston of the SCOTUSBlog provides more detail:

In dissent, Justice Ginsburg wrote that "the Court rightly declines to cast off the equal protection framework settled in Grutter." But that might have been something of an exaggeration of what the Kennedy opinion actually had said on the point. Perhaps her statement was meant, at least in part, as a response to a flat statement by Justice Clarence Thomas that he would overrule that decision, and a separate statement by Justice Antonin Scalia that the challenger to the University of Texas program had not asked for an overruling of that decision. Both of those members of the Court wound up endorsing the Kennedy opinion in full.

In dissent, Justice Ginsburg's main complaint was that the Fifth Circuit Court had already conducted the analysis that the Court was telling it to do over again. She also made the secondary point that she strongly favors the use of race when that is a "benign" method of making up for a long history of racial discrimination in America.

This middle-ground ruling by the court in this case means more attention will now be paid to the next affirmative action case already approved for oral arguments next session:

The case of Schuette v. Coalition to Defend Affirmative Action (docket 12-682) is a test of the constitutionality of a voter-approved ballot measure that ordered the state government to stop using race as even a partial factor in choosing entering classes at public colleges in the state.

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