Wednesday, June 26, 2013

John Brittain on Fisher v. Texas

John_brittain_headshotLong term civil rights stalwart and professor, John Brittain, was nice enough to share his break down of Fisher v. Texas with us today.  As many of you know, John has been involved in one way or another with almost every major education case dealing with race over the past few decades.  Nearest to my heart, he helped start and finish the ground breaking litigation in Sheff v. O'Niell, in which the Connecticut Supreme Court found that de facto school segregation violates the state constitution.   As the former chief counsel to the Lawyers' Committee for Civil Rights, he also played a crucial role in various other affirmative actin and education cases.  After the Lawyers' Committee, he returned to the academy, but with his free time continues to play an important role in litigation and policy.


John's takeaway point from the decision in Fisher are as follows:

  • The decision reaffirms the holistic use of race in the admissions process, at least until the Fifth Circuit Court of Appeals rules on the case after remand.  See Gratz v. Bollinger, 539 U. S. 244 (2003), and Grutter v. Bollinger, 539 U. S. 306 (2003).  The Supreme Court punted the case back to the lower courts on a technicality, deliberately sidestepping the constitutionality of affirmative action.  The value of expanding opportunity for all with a fair shot to attend colleges and universities lives on.  
  • At stake was how much should courts afford deference to universities in reviewing affirmative action policies?  It is indeed still “proper” for courts to grant “some … deference” to the university’s “educational judgment” “that a diverse student body” “is essential” to “serv[ing] its educational goals.”  Fisher, slip op. at 9 (internal citations omitted) (emphasis added).  Under the strict scrutiny standard, a government agency must show that the use of race satisfied a compelling interest (the goals), and the means to accomplish the goals were narrowly tailored with the least restrictive methods. 
  • The lower court erred in “not apply[ing] the correct standard of strict scrutiny.”  Fisher, slip op. at 1-2.  Once the university “establishe[s] that its goal of diversity is consistent with strict scrutiny, it has the burden of proving that the “means chosen by the [u]niversity … are [necessary, and] narrowly tailored to that goal.”  Here on the mean part of the strict scrutiny test, “the [u]niversity receives no deference” and “it is for the courts to ensure that [this burden has been met].”  Fisher, slip op. at 10 (internal quotation marks omitted) (emphasis added).
  • While the university does not have to “exhaust[] … every conceivable race-neutral alternative,” the courts cannot simply adopt the “university’s good faith consideration of workable race-neutral alternatives.”  Fisher, slip op. at 10 (internal quotation marks omitted).  “The … court must … be satisfied that no [available] workable race-neutral” means would accomplish the university’s objectives.  “If a nonracial approach … could promote the substantial interest about as well and at tolerable administrative expense, then the university may not consider race.”  Fisher, slip op. at 11 (internal quotation marks and citations omitted). 
  • Although in the past the Court has declared that strict scrutiny “must not be strict in theory, but fatal in fact,” Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227 (1995),  the Court coined an additional moniker in Fisher, that it “must not be strict in theory but feeble in fact.”  Fisher, slip op. at 13 (emphasis added).
  • Justice Scalia concurred because the constitutionality of affirmative action was not at issue.  Fisher, slip op. at 1 (Scalia, J., concurring).
  • Justice Thomas concurred but also added in a twenty-page opinion on the merits of the case why the government’s use of race-based classifications in education is always prohibited.  Fisher, slip op. at passim (Thomas, J., concurring).
  • Justice Ginsburg dissented and would have upheld the lower court’s decision – accepting the university’s good faith in its goals for diversity and insofar that race-neutral means would not work – as satisfying the commands of Justice Powell in Bakke and the Court in GrutterFisher, slip op. at passim (Ginsburg, J., dissenting). 
  • The Court could have simply held months ago, as it concluded on June 24, 2013, “that the judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fifth Circuit for further proceedings in light of Grutter, Gratz and Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978).”  



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