Monday, June 24, 2013

Breaking News: The Supreme Court Allows Affirmative Action to Live Another Day

Justice Kennedy announcing the decision in Fisher v. University of Texas.  Photo courtesy of 


Today, the Supreme Court, in an opinion by Justice Anthony Kennedy, held in Fisher v. University of Texas that because the Fifth Circuit did not hold the university to the demanding burden of strict scrutiny on affirmative action programs in university admissions articulated in Grutter v. Bollinger (2003) and Regents of the University of California v. Bakke (1978), its affirmance of the district court's decision to uphold the University of Texas's admissions scheme should be vacated and remanded for a second look.  The Court held that the Fifth Circuit was unduly deferential to the university in upholding the admissions scheme. 

The vote was 7-1, with Justice Ginsburg the lone dissenter. Justices Scalia and Thomas wote separate concurring opinions.  Justice Kagan recused herself.

Here is the decision.  The bottom line is that the Court does not overrule Grutter, which permitted a narrowly drawn race conscious university admissions scheme.  Affirmative action lives another day! For divergent points of views the decision offered on Michel Martin's Tell Me More, click here

Justice Kennedy begins the opinion:

"The University of Texas at Austin considers race as one of various factors in its undergraduate admissions process. Race is not itself assigned a numerical value for each applicant, but the University has committed itself to increasing racial minority enrollment on campus. It refers to this goal as a “critical mass.” Petitioner, who is Caucasian, sued the University after her application was rejected. She contends that the University’s use of race in the admissions process violated the Equal Protection Clauseof the Fourteenth Amendment. The parties asked the Court to review whether thejudgment below was consistent with “this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, 539 U. S. 306 (2003).” Pet. for Cert. i. The Court concludes that the Court of Appeals did not hold the Universityto the demanding burden of strict scrutiny articulatedin Grutter and Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 305 (1978) (opinion of Powell, J.). Because the Court of Appeals did not apply the correct standard of strict scrutiny, its decision affirming the District Court’s grant of summary judgment to the University was incorrect.That decision is vacated, and the case is remanded for further proceedings."

Click here for background on the case.  For thoughtful analysis of the decision from the Constitutional Law Blog, click hereLyle Denniston offers his analysis of the Fisher decision here.  The initial news reports suggest that the Supreme Court "sidestepped" the issue of the constitutionality of race conscious admissions schemes.  If so, it is a victory of sorts for supporters of such schemes given that the talk had been for months that the Court might well abolish them.



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