Affirmative Action at the Supreme Court
California Lawyer

Affirmative Action at the Supreme Court

The future of using race as a factor in university admissions (Fisher v. University of Texas).

June 2013

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June 25, 2013 -- One of my law students joked that this week's SCOTUS-watch atmosphere could spawn a new version of the poem "'Twas the Night Before Christmas." Each "SCOTUS-mas" decision day on the remaining major cases (Fisher v. University of Texas on affirmative action; Shelby County v. Holder on voting rights; Hollingsworth v. Perry and United States v. Windsor on marriage equality) is preceded by intense anticipation and speculation on all sides about what gifts or lumps of coal the Court might produce.

The 7-1 Fisher decision yesterday yielded neither a gift nor a lump -- or perhaps it offered both?

The surprisingly lopsided majority opinion, authored by Justice Kennedy, ruled in favor of Abigail Fisher, a white student who had been rejected by the University of Texas (UT) in 2008. All but Justice Ruth Bader Ginsburg (with a recusal by Justice Elena Kagan) agreed to reverse the Fifth Circuit's affirmance of the District Court's grant of summary judgment, and remand the case back to the district court. The practical effect of the decision on the affirmative action program of UT (as well as those of other public colleges and universities) is to require specific evidence that the university's use of race as a factor in admissions is "necessary" because there is no race-neutral alternative by which to achieve the diversity it seeks. The majority opinion ruled that the Fifth Circuit had incorrectly applied the "narrow tailoring / necessary means" requirement of the strict scrutiny test; Justice Ginsburg dissented and would have upheld the University's program.

In this sense, the majority opinion can correctly be described as a narrow ruling and a partial victory for both opponents and proponents of affirmative action. The "headline news" of Fisher, of course, is what the majority opinion did not do: by not overruling the "compelling interest in diversity" rationale of Grutter (2003) and Bakke (1978), it bespeaks a situational respect for precedent and for deference to a university's choice to pursue diversity in admissions as its "compelling" goal. For now, public colleges and universities may continue to consider race as a factor in achieving that goal.

The prospects for long-term continuation of affirmative action programs, however, remain tenuous. The majority opinion's rejection of the UT's defense brings to mind scholar Gerald Gunther's famous description of strict scrutiny as "strict in theory, fatal in fact." Justice Thomas's concurrence states that he would overrule Grutter, and Justice Scalia's concurrence suggests a similar result if an appropriate case presents itself. The grant of certiorari in Schuette v. Coalition to Defend Affirmative Action may very well present that case. If so, the ghosts of "SCOTUS-mas" past do not portend well for the future of affirmative action.

Margaret M. Russell is a professor at Santa Clara University School of Law

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