Thursday, June 23, 2016

Race Conscious Admissions Policies Upheld in Fisher v. University of Texas II

Today, by a 4-3 vote, the Supreme Court upheld the University of Texas's affirmative action admissions program in Fisher v. University of Texas II. The Court found that the consideration of race in its admissions process did not violate the Equal Protection Clause of the Fourteenth Amendment, and accordingly, rejected Abigail Fisher's challenge that she, a white female, had been discriminated against because of this policy.

Justice Anthony Kennedy wrote for the four-justice majority. He effectively found that the UT race-conscious affirmative action program was appropriately narrow (and, indeed, the only functional) means available for the University to accomplish the goal of achieving the benefits of diversity. The opinion, interestingly, concludes with a caution directed at the University of Texas "to engage in constant deliberation and continued reflection regarding its admissions policies," with the implication that a continuing obligation to insure fairness in use of race-conscious admissions policies is implicit to its continuing legality. Justice Samuel Alito wrote a 50-page dissent which was joined by Chief Justice John Roberts and Justice Clarance Thomas. Justice Thomas also dissented.

Justice Kennedy's reasoning is fairly called narrow. The opinion can be read as a compromise interpretation of affirmative action doctrine that maintains the status quo. And yet, it is novel to simply say that race-conscious affirmative action, both in general and as applied in Fisher, is still constitutional today. (Indeed, as Ruthann Robson points out, it is also novel that Justice Kennedy actually upheld an affirmative action policy under the Equal Protection Clause.) Certainly this is not the last word of the Court on race-conscious affirmative action.

Other recent reporting on Fisher can be found at the New York Times and at SCOTUSblog. Additionally, we will post more about Fisher in the days to come, so stay tuned to Race Law Prof Blog for more commentary on this important decision.

https://lawprofessors.typepad.com/racelawprof/2016/06/race-conscious-admissions-policies-upheld-in-fisher-v-university-of-texas-ii-.html

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