• Facebook
  • Twitter
  • Subscribe
  • RSS

Supreme Court Punts On Affirmative Action, But Its Future Seems Short-Lived

law-gavel-lights

Among the major decisions that have been pending in the Supreme Court as it nears the end of its term has been Fisher v. University of Texas, a case which deals with the University of  Texas’s admissions policies, and specifically its use of race-based criteria to give preference to previously under-represented minority groups. This is an area of law that the Supreme Court has been dealing with since its divided and confusing opinion in Regents of the University of California v. Bakke, which was decided in 1978. While the Bakke decision, while it didn’t fully reject the idea of race-based admissions policies, also didn’t accept the practice either and led to a long era in which parties tried to determine what exactly is acceptable under the 14th Amendment’s Equal Protection Clause which, as a general rule, has been held to bar discrimination based on race except in the most exceptional and rare circumstances. Most recently, in Grutter v. Bollinger in 2003, the Court narrowly upheld an affirmative action policy in place at the University of Michigan Law School that used race as a factor with the purported goal of increasing class diversity. It’s a decision that left many people unsatisfied and, when Sandra Day O’Connor retired, it was considered only a matter of time before the issue came before the Court again. Fisher was that case and, given that it was argued in October, many were wondering what was taking so long. Now, considering how the case turned out, many Court observers are still left scratching their heads:

The Supreme Court on Monday ordered lower courts to take a fresh look, under a more demanding standard, at the race-conscious admissions policy used to admit students to the University of Texas. The 7-to-1 decision was simultaneously modest and significant, and its recalibration of how courts review the constitutionality of affirmative action programs is likely to give rise to a wave of challenges to admissions programs at colleges and universities nationwide.

The brief decision, issued eight months after the case was argued, was almost surely the product of intense negotation among the justices. The compromise they reached was at least a reprieve for affirmative action in higher education, and civil rights groups that had feared for the future of race-conscious admission programs breathed a sigh of relief.

For now, the Texas program and other affirmative action programs can continue without changes.

The decision did not disturb the Supreme Court’s general approach to affirmative action in admissions decisions, saying that educational diversity is a government interest sufficient to overcome the general ban on racial classifications by the government. But the court added that public institutions must have good reasons to use the particular means they use to achieve that goal.

That requirement could endanger the Texas program when it is reconsidered by the federal appeals court in New Orleans. The program admits most students under race-neutral criteria, accepting all students in the state who graduate near the top of their high school classes. But the university also uses a race-conscious system as a supplement.

“Strict scrutiny,” Justice Anthony M. Kennedy wrote for the majority, “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.”

Courts reviewing affirmative action programs must, he wrote, “verify that it is necessary for a university to use race to achieve the educational benefits of diversity.” That requires, he said, “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.”

Justice Ruth Bader Ginsburg, who announced her lone dissent from the bench, said the race-neutral part of the Texas program worked only because of “de facto racial segregation in Texas’s neighborhoods and schools.” She said she would have upheld the appeals court decision endorsing the entire admissions program.

The remaining justices, including ones friendly and hostile to affirmative action, agreed on a middle ground, though Justices Antonin Scalia and Clarence Thomas each issued dissents indicating that they would vote to strike down race-conscious admission plans in a future case.

Justice Elena Kagan disqualified herself from the case, presumably because she had worked on it as solicitor general.

The precise practical consequences of the decision, in Texas and around the nation, will take some time to come into focus. The decision, in which most of an often polarized court found a middle ground, was notable for the incremental step it took.

SCOTUSBlog’s Amy Howe explains the ruling:

Today a broad majority of the Court reinforced that affirmative action must be strictly reviewed, but it did not outlaw those programs.  In an opinion that required only thirteen pages, the Court explained that a university’s use of race must meet a test known as “strict scrutiny.”  Under this test, a university’s use of affirmative action will be constitutional only if it is “narrowly tailored.”  The Court in Fisher took pains to make clear exactly what this means:  courts can no longer simply rubber-stamp a university’s determination that it needs to use affirmative action to have a diverse student body.  Instead, courts themselves will need to confirm that the use of race is “necessary” – that is, that there is no other realistic alternative that does not use race that would also create a diverse student body. Because the lower court had not done so, the Court sent the case back for it to determine whether the university could make this showing.

Justice Antonin Scalia joined the Court’s opinion, but he also wrote a separate, one-paragraph concurring opinion in which he made clear that, if Fisher and her lawyers had asked the Court to do so, he would have voted to overrule the 2003 decision in Grutter and eliminate the use of affirmative action altogether.  Justice Clarence Thomas – who in his autobiography blamed affirmative action for his problems finding a job after he graduated from Yale Law School in the 1970s – shared that view, but he opted to discuss his reasoning at length, in a twenty-page concurring opinion in which he suggested (among other things) that “the arguments advanced by the University in defense of discrimination are the same as those advanced by the segregationists.”

Lyle Denniston has more:

Here is the way the opinion recited that ultimate test: “A university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that encompasses a broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”

Justice Kennedy repeated a statement that the Court has often reiterated in race cases: the standard of “strict scrutiny” must not be “strict in theory, but fatal in fact.”  But, he went on, “the opposite is also true.  Strict scrutiny must not be strict in theory but feeble in fact.”  The emphasis was different, and it obviously was intended to be a meaningful difference.

Whether a university program that takes any account of race can run this legal course and survive, whether at the University of Texas or elsewhere, will depend upon cases that are now likely to unfold across the country.   There is a strong new incentive for opponents of “affirmative action” in college admissions to test virtually every such program; indeed, in some ways, the tone of the opinion would seem to invite such further testing.

As  both Denniston and Howe go on to note, today’s decision doesn’t really do much in the way of resolving the issue of affirmative action, but it did send the case back with what appear to be specific instructions about how it ought to be handled in the future. Given those instructions, it seems as though it’s going to be rather difficult for the University to justify its race-based admissions policy under a strict scrutiny standard. For example, as many observers have remarked over the past several years, the goal of “diversity,” assuming for the sake of argument that it’s even a goal that the University ought to be pursuing, would be more easily achieved by considering a number of factors at during the Admissions process rather than concentrating on race. Socio-economic status, for example, is a factor that would, in the end, far more diversity than a simple race-based policy. After all, who comes from a more disadvantaged background, the African-American student from an upper middle class family or the white student from a poor, semi-rural background? If your goal is to create a more diverse student body, which one would be the more appropriate choice. Through all of this, of course, it ought to be important that whatever the Admissions policy might say about race or other factors, that the goal of “diversity” not be used to deny admission to students who are clearly academically qualified, which granting it to someone who probably isn’t and is likely to struggle through an institution that they probably should not have been admitted to.

Ideally, I would rather see all race-based Admissions policies eliminated. If it’s wrong to discriminate based on race, and I believe that it is, then the fact that there might be a good motive behind it is really rather irrelevant. So far, though, the Courts that have handled this issue over the past 35 years have come close to that line without crossing it. Many people thought Fisher would be the case that did that. Personally, I found that unlikely largely because Justice Kagan had recused herself, meaning that the case was argued before a Court that was essentially equally divided on the core issue in the case. A 4-4 decision would have, in the end, resulted in an inconclusive result that set no national result. Instead of going that route, it’s not entirely surprising that the Court took this route.

As noted, the Court will be dealing with the issue of affirmative action next year, although in a slightly different context. Sometime in the fall, they’ll hear argument inSchuette v. Coalition to Defend Affirmative Action, a case dealing with a Michigan Constitutional Amendment that seeks to ban the use of affirmative action in Admissions in state universities. It does not appear that Justice Kagan will need to recuse herself in this case, which means that the case will be argued before the full Court and we may well get that final ruling on affirmative action that people have been waiting for since the Bakke decision was handed down.

Here’s the opinion:

Fisher v. University of Texas by dmataconis

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. al-Ameda says:

    Justice Clarence Thomas – who in his autobiography blamed affirmative action for his problems finding a job after he graduated from Yale Law School in the 1970s – shared that view, but he opted to discuss his reasoning at length, in a twenty-page concurring opinion in which he suggested (among other things) that “the arguments advanced by the University in defense of discrimination are the same as those advanced by the segregationists.”

    Who doesn’t see that white people are always the victims of affirmative action programs?

    Like or Dislike: Thumb up 6 Thumb down 0

  2. Rob in CT says:

    If AA goes down and is replaced by something focusing on class (socioeconomic opportunity, whatever), the result will likely be less change than folks imagine, since race and class track pretty closely still (and there are reasons for that we can all argue about some other time).

    I do hope that if they strike down AA, somebody (either in the decision or in the dissent) points out the absurdity of “legacy” admissions.

    Like or Dislike: Thumb up 4 Thumb down 0

  3. Sam Malone says:

    Thank you C. Thomas…for informing us that racism, and sexism, no longer exists.

    “…If it’s wrong to discriminate based on race, and I believe that it is, then the fact that there might be a good motive behind it is really rather irrelevant…”

    Another f’ing Libertarian wet-dream destroyed by exposure to the real world.
    It is wrong to discriminate based on race. Yet people still do. One only need read the comments posted here by Superdestroyer. So yes, in a perfect world good motives would be irrelevant. But in this world they are about all we have in the battle against ignorance. I’m willing to listen to alternatives. Oh wait…Doug raises none.
    Ironic that a document which recognized blacks as 3/5ths of a person is now guiding how we deal with this disease of our society.

    In any case….I’m willing to bet Thomas couldn’t find a job because he is in fact a douche-bag. It is legal to discriminate against douche-bags. I can’t tell you how many douche-bags, in the course of my lifetime, have claimed they were being discriminated against because they were of color, or a woman. Douche-bags generally do not recognize their own douche-iness.

    Like or Dislike: Thumb up 8 Thumb down 2

  4. stonetools says:

    Apparently Doug sees a society in which there is no ongoing racism, nor disadvantages to minorities as result of past racism. How er, libertarian of him. In the real world, there is still plenty of evidence of both.

    Housing Discrimination Study

    A major federal study has found that minority renters and home buyers who test the housing market for discrimination were told about and shown fewer homes and apartments than their equally qualified white counterparts

    There are several such studies showing that racism is persistent and pervasive. It’s less than it was. But its still a serious problem.

    If it’s wrong to discriminate based on race, and I believe that it is, then the fact that there might be a good motive behind it is really rather irrelevant.

    Er, that’s confusing different senses of the word “discrimination.” Its wrong to practice racism. Adopting solutions that take account of race to correct the effects of racism isn’t “discrimination” in the sense of racism. Was the setting up of a Freedmans Bureau to help ex-slaves by the federal government after the Civil War “discrimination?” Not in the sense the Civil Rights Act is talking about.

    After all, who comes from a more disadvantaged background, the African-American student from an upper middle class family or the white student from a poor, semi-rural background?

    While this is a popular straw-man of the anti-affirmative action crowd, I’d like to know how often it actually happens. I do know that when affirmative action was abandoned in California, minority enrollment plunged.
    What’s interesting about the anti-AA activists is while they are are quick to attack AA, they never actually seem to come up with alternatives for attacking the underlying problem of the disadvantages caused by racism. They seem to just assume that racism isn’t a problem anymore, so need to suggest an alternative. It sure must be nice for the minorities living in that alternate universe. Not so nice for those living in this one.

    Like or Dislike: Thumb up 8 Thumb down 0

  5. Sam Malone says:

    “…I do hope that if they strike down AA, somebody (either in the decision or in the dissent) points out the absurdity of “legacy” admissions…”

    Seriously? That would affect the 1%. So no…that will never happen.

    Like or Dislike: Thumb up 6 Thumb down 0

  6. stonetools says:

    @al-Ameda:

    If Clarence Thomas is truly against affirmative action, then he should resign from the SCOTUS effective immediately. That was an affirmative action pick if there ever was one.
    Talk about a self-hating black man. “I’ve got mine, eff the rest of you.”

    Like or Dislike: Thumb up 4 Thumb down 1

  7. al-Ameda says:

    @stonetools:

    If Clarence Thomas is truly against affirmative action, then he should resign from the SCOTUS effective immediately. That was an affirmative action pick if there ever was one.
    Talk about a self-hating black man. “I’ve got mine, eff the rest of you.”

    With Justice Thomas I have a feeling it’s partially about payback for the treatment he received at the hands of the Judiciary Committee back in 1987 – 40 years of payback coming our way – 26 years down, 14 to go. I do think it’s revealing that he believes that he is held in less esteem than he should be because of Affirmative Action.

    Like or Dislike: Thumb up 3 Thumb down 0

  8. PD Shaw says:

    It seems to me that Kennedy’s direction to “closely examin[e] how the process works in practice” gets to the heart of the problem. I can easily agree with the principle that diversity is a value for higher education, but find it difficult to implement in practice in any way that actually works in the real world absent the types of hard quotas that the Court has rejected. It would be nice if every college application was evaluated with a personal touch that drew forth all of the complex variety of experiences and backgrounds in a diverse country or world. But is that practical? I doubt it.

    Like or Dislike: Thumb up 2 Thumb down 0

  9. PD Shaw says:

    Just as a point of information, the type of affirmative action approved in the Bakke case is not about remediating current or historic racial discrimination, its about allowing colleges to improve the educational experiences with a diverse student body. Its as much about white people as minorities. Maybe even more so?

    Like or Dislike: Thumb up 5 Thumb down 0

  10. stonetools says:

    @al-Ameda:

    The reason why Justice Thomnas is held in low esteem is that his decisions , reasoning and judicial philosophy all SUCK. Exhibit 78,123:

    Justice Clarence Thomas – who in his autobiography blamed affirmative action for his problems finding a job after he graduated from Yale Law School in the 1970s – shared that view, but he opted to discuss his reasoning at length, in a twenty-page concurring opinion in which he suggested (among other things) that “the arguments advanced by the University in defense of discrimination are the same as those advanced by the segregationists.”

    Seriously? He sounds like Glenn Beck and Rush Limbaugh rolled into one here. Soon he’ll be praising the Dred Scott decision as being misunderstood.

    Like or Dislike: Thumb up 4 Thumb down 0

  11. superdestroyer says:

    All the Supreme Court did was reaffirm their real ruling from Gratz and Grutter 10 years ago. A college can discriminate if the college manages to hide the evidence well enough. The university just has to be careful to not have any hard and fast quota or set aside.

    What the University of Texas has to explain is why the top 10% rule does not produce enough Latino students to achieve the desired level of diversity and why then the University of Texas needs to admit Latino students from the rich suburban high schools who were not in the top 10% of their classes.

    What is amazing is that the national media keeps reporting the Fisher case from the POV of white versus black when the real issue is why UT-Austin is admitting lower qualified rich Latino students.

    Like or Dislike: Thumb up 1 Thumb down 1

  12. Hostile Elite vs Gullible White Cattle says:

    @al-Ameda:
    Affirmative action will go away once White people are extinct. this is not left vs right, GOP vs Dems, Socialism vs liberty. This is war against White people.

    Why do hostile globalist elite defend Israel as a Jewish ethnostate with Jewish only immigration, but ravage White majority Europe/North America into a multi-ethnic, multi-cultural Gulag with dystopian non-White colonization?

    The world is 93% non-White, only 7% White. But 3rd world colonizers, Muslims, Sikhs, Hispanics, are aggressively advancing their agenda to annihilate gullible Whites, just as China annihilates Tibet.

    How long will gullible Whites cuckold for murderous anti-White elite, who confiscate our guns, infiltrate/subvert our banks/FBI/CIA, indoctrinate White kids in academia/mass media, plunder White jobs/wages, & butcher White soldiers in bankrupting wars?

    “Native” Americans invaded from East Asia. Yellow & Brown races committed 10-times more genocide, slavery, imperialism than Whites. Since Old-Testament, Whites have been victims of Jewish/Crypto-Jewish, Turkic, Muslim, N.African imperialism, slavery, genocide.

    Gullible Whites should reject subversive ideologies- libertarianism, feminism, liberalism- & reject hostile slanders of racism. Peace to all humanity, but White people must organize to advance their interests, their fertility, their homelands. Spread this message. Reading list: goo.gl/iB777 , goo.gl/htyeq , amazon.com/dp/0759672229 , amazon.com/dp/1410792617

    Like or Dislike: Thumb up 0 Thumb down 4

  13. Tyrell says:

    The standard of merit, academic achievement, skills, and intelligence should be the critereria for deciding job placement, promotion, hiring, and college admission. Applications should not even have a place to list race. To give special consideration to any group over others for any reason is wrong. This “setting aside” as it used to be called, is unfair and also damaging to the objectives and mission of an organization. Imagine if people who are nearsighted demanded to be considered for employment as airline pilots, on an equal basis with those individuals who have perfect vision. What professional sports team would consider anything other than physical ability?
    I know that attitude, work ethic, and other factors are considered and should be. But race, sexual orientation, creed, etc. should not be a factor. There is the legitimate argument against scholarships given based on athletic ability. What effects would there be if these were not
    allowed? Something to think about. To use factors other than merit, skills, ability, experience, intelligence, achievement would be discrimination.

    Like or Dislike: Thumb up 0 Thumb down 0

  14. Just Me says:

    I am not a fan of race based affirmative action at least as it applies to college admissions-I think SES based makes far more sense and would likely result in more diversity than race based.

    I think the reason colleges opt for race based is some of the less qualified minorities will often come from families with the ability to pay.

    Like or Dislike: Thumb up 1 Thumb down 0

  15. fred says:

    Most minorities agree that affirmative actions work for them and in effect for the good of our country. Most will also agree that when they excel at their jobs many white colleagues become threatened by their excellence and take microaggressive actions, sometimes without even knowing, to downgrade a minority member’s performance. Unfortunately, research and the information marketplace never ever cover this in their reports.

    Like or Dislike: Thumb up 1 Thumb down 0

  16. Rob in CT says:

    Woohoo, Super, you’ve got a friend come ’round from Stormfront to “help” you with your arguments.

    Like or Dislike: Thumb up 1 Thumb down 0

  17. Sam Malone says:

    “…A college can discriminate if the college manages to hide the evidence well enough…”

    You ignorant mother-f’er.
    Solutions meant to neutralize the effect of racists like you is not discrimination.
    They may not always be perfect. But as long as there are those like you…they will be necessary.

    Like or Dislike: Thumb up 1 Thumb down 1

  18. Tony W says:

    As a lifelong liberal who formerly saw AA as a reasonable (and temporary) remedy to level the playing-field, I find myself ‘evolving’ on this issue. As an example, my HR department is way out of control on the ‘diversity’ issue – females and African-Americans are routinely promoted beyond their capabilities and are essentially exempt from performance rules – presumably to keep the demographics in a balance that will not raise eyebrows with our government contracting customers.

    I hate the way AA designees have to always wonder if they got the job/promotion/assignment because of that designation, rather on their own merits. In short, I would not cry many tears over the loss of AA quotas, as long as other protections of the 1964 Civil Rights act which prevent outright discrimination remain intact.

    Like or Dislike: Thumb up 0 Thumb down 0

  19. Note that Justice Thomas doesn’t bother with originalism if he doesn’t like the policy result it’d compel.

    He cites an 1868 Iowa Supreme Court case to pretend that he’s talking about original understanding; but that was a case about Iowa law, that didn’t cite the Fourteenth Amendment. Unsurprisingly, as the Fourteenth Amendment didn’t take effect for another three months.

    Like or Dislike: Thumb up 3 Thumb down 0