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June 24th at the Supreme Court

Affirmative Action Struck Down...Sort of, Not Really

Today, the Supreme Court released five opinions the most watched of which was the Fisher case involving affirmative action. This case is the last to be decided after being heard in October, 2012. For those conservatives wishing to see a sweeping decision against affirmative action in college admissions, there is disappointment. To briefly summarize, this case rested on the 2003 Grutter decision out of Michigan when the Court ruled that race could be one of many factors to be considered in order to create a diverse student body. In simple terms, Fisher’s lawyers, the young lady that challenged the policy at the University of Texas, did not directly challenge Grutter- that is, ask the Court to overrule their previous decision- the Court, in an opinion authored by Justice Kennedy, basically left Grutter intact. What this means is that the Court still holds to the proposition that considering race in college applications is an acceptable practice in order to create that diverse student body. In other words, the Court sort of believes that college admissions discrimination still exists to a certain degree and that “affirmative action” guidelines may still be the best method, at this point, to address that issue.

What this decision does, because Grutter was not directly challenged, is send the case back to the Fifth Circuit Court of Appeals on remand. The decision was not even close at 7-1 which indicates that there was some hand-wringing on this one to get it narrow. In a way, the Court wimped out. Ginsburg was the lone dissenter believing that the University of Texas policy passed constitutional muster. In effect, this is a compromise decision. Only Justice Thomas stated he would overturn the Grutter decision. Scalia, Alito, and Roberts all signed onto Kennedy’s decision. However, one would likely believe that Alito and Roberts are following the lead of Scalia who stated that he would likely have voted to overrule Grutter but because the plaintiff’s did not challenge that decision, he went with the majority decision. On the other side, Sotomayor and Breyer also likely joined the decision considering that this was the best they can do to preserve affirmative action in college admissions. In short, they were unwilling to join Ginsburg in her dissent.

From oral arguments, the main thrust was the concept of “critical mass.” Specifically, the Court wanted to determine when a college believes they have achieved a diverse enough student body so that the affirmative action programs can be scaled backed or discontinued. Roberts in particular was skeptical of an open-ended system and struggled to determine what criteria a college uses. Do they simply go by the ethnicity boxes checked off on the front of an application? Do they micromanage down to the classroom level to determine the minority population in certain classes? In short, he seemed skeptical of the University of Texas’ criteria.

Another important consideration in this case is another case which they will take up next term in October, 2013. That case, out of Michigan and in response to Grutter, asks whether a state through legislation, referendum or constitutional amendment can ban the use of affirmative action in college admissions. That case would likely be a better vehicle to overturn Grutter. So perhaps, the affirmative action battle is left for a later day.

Now because Grutter was not challenged and still stands, that decision is controlling here. One important element of that case was that strict scrutiny be applied in the analysis of the policy since it was, at the end of the day, race-based. This decision remanded the case back to the Fifth Circuit basically holding that court in error. The Fifth Circuit affirmed the decision of the District Court where the case was first argued to grant summary judgment in favor of the University of Texas. The Supreme Court basically ruled that the Fifth Circuit erred because they failed to apply strict scrutiny in their analysis of the case, as did the lower District Court.

The practical effect is that Fisher will get her day in District Court and the case is not “closed.” The key quote from the opinion is thus: “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” If Fisher and her lawyers wish to pursue this case, they would have to prove there are alternatives and the University would have to prove the opposite. Simply, there is enough wiggle room on either side to make their case. Equally important, however, is the consensus in the majority opinion that racial and ethnic diversity in a student body are compelling interests in the context of education. Whether that philosophy was reaffirmed because of some heartfelt belief or because Grutter was not directly challenged is left open to discussion. Most likely, it is a combination of the two with the liberals on the heartfelt side and the conservatives on the Grutter non-challenge loophole side.

After reading this decision in more detail as well as the other four (Obama’s EEOC was dealt a blow today), I will follow up with another article.

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