Non-Decision Decision Hints at Affirmative Action Future
The facts of Fisher v. University of Texas are simple. Caucasian girl applied to the University of Texas at Austin, didn't get in, and blamed the university's affirmative action policies because others, who may have been less qualified, but were ethnically diverse, were admitted under the university's two-stage admissions system.
UT's unique admissions plan consists of two groups of students. The first is the "ten-percent." Everyone who graduates in the top ten percent of their Texas high school class is guaranteed admission, regardless of the quality or location of the school. Because of the racial divisions in neighborhoods and schools, this alone provides some diversity.
After the “ten percent” comes everyone else, in which case, race is a positive, though not dispositive factor. Oddly enough, at oral argument, the university seemed to be stating that their goal was to get “better-off” minority students and those that might counter stereotypes, like an African American fencer, reports The Wall Street Journal and NBC News. The judges were confused. So were we. It didn’t make a difference, however, as today’s decision had nothing to do with fencing. It was about the proper standard of law that was not used by the lower courts.
The lower courts’ rulings were simple: they deferred to the university, both in the definition of the compelling interest of a beneficially diverse student body and in deciding whether its specific plan was narrowly tailored to achieve that goal. They placed the burden on Fisher to overcome that deference.
Does that sound like strict scrutiny? It is not, and that was today’s holding. While deference to the definition of the compelling interest is appropriate (the court won’t argue with the notion that diversity is a compelling interest, not only because of deference, but because they’ve made that same statement repeatedly, in Bakke, Gratz, and Grutter), deference to the means taken and whether they are narrowly tailored is inappropriate.
Once the university establishes the compelling interest in a diverse student population, under Bakke, Gratz, and Grutter, strict scrutiny applies and the university is tasked with proving that their plan is the least restrictive means possible to achieve the objective. The lower courts incorrectly placed that burden on Fisher, despite calling their deferential treatment “strict.”
What does this mean for affirmative action? Very little, explicitly. The case is remanded for reconsideration and application of the correct standard.
Implicitly, the language of the court indicates a strong desire to readdress the trifecta of affirmative action cases. The majority stated a disclaimer, before any analysis, that “[w]e take those cases as given for purposes of deciding this case.” Why? The parties didn’t ask the court to reevaluate the past cases.
Both Scalia and Thomas issued separate concurrences, saying that they’d like to revisit Grutter. Thomas wrote a 20-page concurrence, longer than the majority, hypothetically overturning Grutter.
The court may get their chance, as next term, they’ll hear another affirmative action case, Schuette v. Coalition to Defend Affirmative Action, a case that asks whether banning preferential treatment is a violation of the Equal Protection Clause.
Meanwhile, Justice Ginsburg stood alone in dissent, arguing first that remand is unnecessary, as the record is sufficient to find that university’s policy complies with past precedent, and that Grutter, et al, should not be revisited.
- Fisher v. University of Texas (Supreme Court)
- Rumors, Frustration Abound as SCOTUS Has 11 Cases, 1 Week Left (FindLaw’s U.S. Supreme Court Blog)
- Arbitration, Sentencing, Speech; SCOTUS Saving Best for Last (FindLaw’s U.S. Supreme Court Blog)
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