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Supreme Court Compromises in Affirmative Action Case
The National Law Journal
The Supreme Court on Monday stepped back from the brink of calling for an end to affirmative action programs, returning to a lower court the dispute over a race-conscious admissions program at the University of Texas.
Justice Anthony Kennedy, writing for a 7-1 majority in Fisher v. University of Texas at Austin, said that on remand, the U.S. Court of Appeals for the Fifth Circuit must apply "strict scrutiny" to the question whether the University of Texas "has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity." Kennedy said that in its first review of the Texas program, the circuit gave too much deference to the university.
“The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity,” Kennedy wrote.
The long-awaited decision was quickly labeled a “dud” or a “punt,” and was far from the definitive ruling slamming the door on affirmative action that some were hoping for and others were fearing. The debate over affirmative action that has divided the nation for decades will continue, as will litigation over the issue. Universities eager for guidance from the court on future affirmative action policies will have to wait.
But some analysts did forecast that Kennedy’s command to lower courts will begin a process that could ultimately spell an end to affirmative action.
“The Supreme Court has established exceptionally high hurdles for the University of Texas and other universities and colleges to overcome if they intend to continue using race preferences in their admission policies,” said Edward Blum, director of the Project on Fair Representation, who sponsored the Fisher litigation. “It is unlikely that most institutions will be able to overcome these hurdles.”
University of St. Thomas School of Law professor Michael Paulsen said, “The court's decision was something of a ‘dud,’ but it was a correct dud and came with a signal of things to come. The Supreme Court told the lower courts to go back and do it right this time and sent a warning shot across the bow: racial preferences of any kind are very strongly disfavored and will almost never be upheld.”
But others said that at a practical level, the new scrutiny ordered by the high court could require extensive proceedings at the trial and appeals level, making challenges to other programs rare and costly.
Alan Morrison, a veteran Supreme Court advocate and associate dean at The George Washington University Law School, said Kennedy “strongly hints that trials will be needed in other cases, perhaps even on remand in Fisher. If that is borne out, plaintiffs will be much less willing to sue in these cases because of the cost and time involved.”
Stuart Taylor Jr., a critic of university affirmative action programs, also said, “These cases are very hard to bring,” adding that Kennedy’s focus on this aspect could mean that the justice has given up on “seriously curtailing affirmative action.”
But if litigation does prove possible, Taylor said it could show that affirmative action does not work as intended, and that it even harms some beneficiaries by putting them in universities and programs in which they cannot succeed.
In a concurring opinion, Justice Clarence Thomas also made that argument, asserting that none of the briefs in the Fisher case “presented a shred of evidence” that black and Hispanic students admitted under affirmative action are able to make up the gap between then and white and Asian students.
Thomas, the court’s only black justice, has long been vocal about what he sees as the stigmatizing effect he felt at Yale Law School of being labeled as someone admitted through affirmative action. Justice Sonia Sotomayor has said she benefited from affirmative action when she was admitted to Princeton University, but in contrast to Thomas viewed it as a positive opportunity.
Sotomayor joined the majority, as did all the other court’s conservative justices and Stephen Breyer. Justice Elena Kagan, who participated as solicitor general in early stages of the litigation, recused.
Thomas was only writing for himself in objecting to the Texas program in the Fisher case. And the fact that seven justices joined in a majority opinion that took Grutter v. Bollinger “as given,” in Kennedy’s words, was cause for celebration among traditional civil rights advocates.
The 2003 Grutter decision allowed the use of race among other factors in university admission programs. The Fisher opinion also said universities deserve “some deference” to their experience and expertise in making the initial decision to set a goal of diversity.
“The Supreme Court today endorsed the benefits of student-body diversity in colleges and universities and allowed the continued use of race-conscious admissions policies,” said Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund.
“The educational benefits of diversity are clear and the court’s decision reaffirms that it is in our national interest to expand opportunities for everyone,” said Wade Henderson, president of the Leadership Conference on Civil and Human Rights. “We believe that the University of Texas’s admissions policy is a carefully crafted one that will ultimately be upheld by the Court of Appeals.”
Mayer Brown partner Andrew Pincus, who filed a brief in the case for the National Women’s Law Center, said, “Far from overturning or limiting Grutter—as many had predicted—the court instead reaffirmed that Grutter is the governing standard and concluded that the lower courts were wrong only because, the Court found, that they had misapplied Grutter.”
In 2008, Abigail Fisher, a white student, challenged the University of Texas program, which combines admission for all students in the top ten percent at Texas high schools with a holistic review of individual applicants that considers factors including race. The U.S. District Court for the Western District of Texas summarily upheld the program, and on appeal the Fifth Circuit did the same.
The Supreme Court’s unusually brief 13-page opinion vacating and remanding the Fifth Circuit ruling took eight months for the court to craft, suggesting extensive revisions to find narrow grounds that would command a majority.
The only dissent came from Justice Ruth Bader Ginsburg, who said she would not have returned the case “for a second look.” She added that the court's majority “rightly declines to cast off the equal protection framework settled in Grutter.”
The court will hear another affirmative action case next term, titled Schuette v. Coalition to Defend Affirmative Action. But it does not focus on specific university programs, instead asking whether states violate equal protection by banning affirmative action programs outright.
The Fisher case had significance in Supreme Court history, arising from the same university involved in Sweatt v. Painter, the landmark 1950 decision that led to the desegregation of the University of Texas. It was brought by Heman Sweatt, who was denied admission to the UT law school because he was black.
McDermott Will & Emery lawyer Allan Van Fleet filed a brief in the Fisher case on behalf of Sweatt’s family.
Van Fleet said Monday the family was “pleased that the Court did not hold unconstitutional any consideration of race in college admissions, but confirmed that “the attainment of a diverse student body . . . is a constitutionally permissible goal for an institution of higher education.”
The program at issue, Van Fleet said, now gives applicants “the kind of holistic review that Heman Sweatt deserved, but was denied.”
Tony Mauro can be contacted at email@example.com.