Commentary varies widely about today’s 7-1 Supreme Court decision in the case of Fisher v University of Texas, Austin, in which a white student sued the University of Texas for denying her admission to the university while at the same time granting admission to black students who she believed were less qualified than she was for admission.
We invite you to read commentary in the following articles:
- “Affirmative Action Survives Another Test,” by the New York Times editorial board, here
- Salon.com’s piece by Jillian Rayfield, here, entitled, “Could SCOTUS ruling actually endanger affirmative action policies?”
- CNN’s Bill Mears, who wrote, here, a piece entitled, “Supreme Court sidesteps big ruling on Texas affirmative action”
- Constitution Daily’s back-and-forth between Erwin Chemerinsky representing the American Constitution Society and Roger Clegg representing the Federalist Society, here.
The Supreme Court essentially sent the bulk of the case back to the Fifth Circuit Court of Appeals for a bit of a do-over. I wonder, if that’s all they were going to do, why it took nine months to hand down the decision, but it’s out now, published here.
However, when the Fifth Circuit reconsiders the case, the Supreme Court wants the justices to hold the admissions policies, which consider race of applicants as one of many factors in making decisions, to the much higher legal standard known as “strict scrutiny.” Justice Anthony Kennedy wrote for the Court:
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 [Supreme] Court vacates the Fifth Circuit’s judgment.
The decision sets a new standard for evaluating the admissions decisions of colleges and universities and is likely to trigger many challenges to admissions policies.
Illinois colleges and universities are said to be “breathing a sigh of relief,” if a report in the Chicago Tribune is to be trusted. “There is an implicit message there from the Court’s conservative wing, which is that under a different set of circumstances, we might have decided that … the use of race has no place in admissions decisions, period,” the paper quoted Thomas Cline of Northwestern University as saying.
The decision kept intact much of the Court’s ruling of “critical mass” in the case known as Grutter v Bollinger, holding that educational diversity is still a compelling interest for our governmental institutions. To achieve that diversity, Grutter simply made universities avoid quota systems and ensure that race wasn’t the only factor used. Now, in order to achieve racial diversity, the Court said public institutions had to have a good reason to enact whatever policies they use. Furthermore, if race-conscious decisions are used, they have to be the only way to achieve the critical mass of diversity permitted under Grutter.
That is, it might still be constitutionally permissible for universities to use race as a factor in admission, as many major universities do, including Northwestern and the University of Illinois, Urbana. But any policy based on race will now have to stand up to a tougher test than it would have in the past.
Justice Clarence Thomas wrote a concurring opinion in Fisher, saying he thought Grutter should be thrown out, but the majority didn’t quite do that just yet; it simply made it more difficult to apply a race-conscious policy for admissions in order to achieve diversity:
The University’s arguments today are no more persuasive than they were 60 years ago. … There is no principled distinction between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits.
A few important people speak out
Abigail Noel Fisher, plaintiff, who has since received her undergraduate degree from Louisiana State University … I am grateful to the justices for moving the nation closer to the day when a student’s race isn’t used at all in college admissions. It has been a great privilege to witness how our legal system works to seek justice for an individual like me. The most important lesson I have learned during the last 5 years is to stick by your ideals even if it means some personal sacrifice.
US Secretary of Education Arne Duncan … As the Court has repeatedly recognized, a diverse student enrollment promotes cross-racial understanding and dialogue, reduces racial isolation, and helps to break down stereotypes. This is critical for the future of our country because racially diverse educational environments help to prepare students to succeed in an increasingly diverse workforce and society.
