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Supreme Court Rules on Affirmative Action

6.24.13


Photograph by Gary Blakeley/123RF Stock Images

The U.S. Supreme Court today ruled in the case of Fisher v. University of Texas at Austin, on which it heard arguments last October—the most recent litigation concerning the consideration of race in admissions to selective institutions of higher education. In a 7-1 decision, the court vacated the Fifth Circuit opinion upholding the University of Texas’s admissions procedures, and remanded the case to that court; it held that the Fifth Circuit court did not hold the university to the demanding burden of strict scrutiny required in the prior Grutter and Bakke cases, and so incorrectly upheld a lower court ruling granting summary judgment in favor of the university.

Thus, the ruling appears to be directed primarily at the scope of the review by the Fifth Circuit court, rather than the substance of the prior cases allowing carefully tailored admissions programs in which race is considered as a factor—leaving those issues unsettled.

Justice Elena Kagan, former dean of Harvard Law School, recused herself in the case; Justice Ruth Bader Ginsburg was the sole dissenter.

As the summary of the opinion notes,

Bakke, Gratz, and Grutter, which directly address the question considered here, are taken as given for purposes of deciding this case. In Bakke’s principal opinion, Justice Powell recognized that state university “decisions based on race or ethnic origin…are reviewable under the Fourteenth Amendment,” 438 U.S., at 287, using a strict scrutiny standard, id., at 299. He identified as a compelling interest that could justify the consideration of race the interest in the educational benefits that flow from a diverse student body, but noted that this interest is complex, encompassing a broad array “of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” Id., at 315

In Gratz and Grutter, the Court endorsed these precepts, observing that an admissions process with such an interest is subject to judicial review and must withstand strict scrutiny, Gratz, supra, at 275, i.e., a university must clearly demonstrate that its “ ‘purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is “necessary…to the accomplishment” of its purpose,’” Bakke, supra, at 305.…Strict scrutiny is a searching examination, and the government bears the burden to prove “ ‘that the reasons for any [racial] classification [are] clearly identified and unquestionably legitimate.’ ” Ibid. Pp. 5–8.

Under Grutter, strict scrutiny must be applied to any admissions program using racial categories or classifications. A court may give some deference to a university’s “judgment that such diversity is essential to its educational mission,” 539 U.S., at 328, provided that diversity is not defined as mere racial balancing and there is a reasoned, principled explanation for the academic decision. On this point, the courts below were correct in finding that Grutter calls for deference to the University’s experience and expertise about its educational mission. However, once the University has established that its goal of diversity is consistent with strict scrutiny, the University must prove that the means it chose to attain that diversity are narrowly tailored to its goal. On this point, the University receives no deference. Id., at 333. It is at all times the University’s obligation to demonstrate, and the Judiciary’s obligation to determine, that admissions processes “ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.” Id., at 337. Narrow tailoring also requires a reviewing court to verify that it is “necessary” for the university to use race to achieve the educational benefits of diversity. Bakke, supra, at 305. The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.

Rather than perform this searching examination, the Fifth Circuit held petitioner could challenge only whether the University’s decision to use race as an admissions factor “was made in good faith.” It presumed that the school had acted in good faith and gave petitioner the burden of rebutting that presumption. It thus undertook the narrow-tailoring requirement with a “degree of deference” to the school. These expressions of the controlling standard are at odds with Grutters command that “all racial classifications imposed by government ‘must be analyzed by a reviewing court under strict scrutiny.’ ” 539 U. S., at 326. Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice, yet that is what the District Court and Fifth Circuit did here. The Court vacates the Fifth Circuit’s judgment. But fairness to the litigants and the courts that heard the case requires that it be remanded so that the admissions process can be considered and judged under a correct analysis. In determining whether summary judgment in the University’s favor was appropriate, the Fifth Circuit must assess whether the University has offered sufficient evidence to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.

In concurring opinions, Justices Thomas and Scalia indicate that they would have overruled the Grutter decision, which authorized carefully tailored admissions processes that consider race, had the petitioners sought such a ruling. As the summary notes, under the prior rulings, “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”

Harvard and other higher-education institutions had supported upholding the University of Texas's admissions procedures, as reported earlier

In early comments on the opinion, the SCOTUS (Supreme Court of the United States) blog interpreted the ruling as upholding Grutter and the use of race as a factor in carefully constructed admissions programs:

The Court clearly remanded the case to apply Grutter (or what it says Grutter requires). Two Justices (Scalia and Thomas) signaled that they would overrule Grutter if asked to do so, so expect that challenge to come down the pipe at some point. But for now, Grutter lives.

Inside Higher Ed reported:

The U.S. Supreme Court issued its long-awaited ruling on affirmative action—but didn't offer a definitive opinion on whether colleges may consider the use of race in admissions.

 Ruling 7-1, the court found that the U.S. Court of Appeals for the Fifth Circuit erred in not applying "strict scrutiny" to the policies of the University of Texas at Austin. The case [involved] Abigail Fisher, a white woman rejected for admission by the university, [who] said that her rights were violated by UT-Austin's consideration of race and ethnicity in admissions decisions. Fisher's lawyers argued that the University of Texas need not consider race because it has found another way to assure diversity in the student body.

The decision said that “good faith” by the university would not be enough to justify the consideration of race. But the decision—by Justice Anthony Kennedy—does not offer an opinion on whether the University of Texas can produce sufficient evidence. Rather, it faults the appeals court for not reviewing that question using the high bar of "strict scrutiny" for the consideration of race.

It is likely that today's ruling could mean that—after another round at the Fifth Circuit—the case could return to the Supreme Court.

The Chronicle of Higher Education reported:

After months of deliberation, the U.S. Supreme Court has overturned a decision by the U.S. Court of Appeals for the Fifth Circuit that had upheld the race-conscious admissions policy at the University of Texas at Austin. In a 7-to-1 ruling, from which Justice Elena Kagan was recused, the Court held that the Fifth Circuit was incorrect in upholding a lower court’s summary judgment in favor of Texas because the lower court had failed to apply strict scrutiny to the university’s policy. The Court left intact its precedent that diversity can be a compelling government interest. 

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