Supreme Court's Affirmative Action Punt Is a Half-Decision in a Longer Fight

There was a sense that the Court might have a limited view on racial preferences in college admissions — but the nation's highest tribunal mostly put off a broader ruling as it kept the nation in wait for at least one more day on several more high-profile cases.

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In a decision with any potential landmark status already undercut by the justices' next move on affirmative action, and then undercut again on decision day, the Supreme Court decided it would punt on the case of 23-year-old Abigail Fisher and the University of Texas at Austin, sending it back down to a lower court on Monday morning, with Justice Ginsburg as the lone dissenter. Fisher had argued she was not accepted because she is white, and there was a sense that the Court might have a limited view on racial preferences in college admissions in its long-awaited (non-)decision — but the nation's highest tribunal mostly put off a broader ruling (again) as it kept the nation in wait for at least one more day on several more high-profile cases.

In Fisher v. Texas, Justice Kennedy wrote the majority opinion (7-1, with Justice Kagan recusing herself), and he came to the conclusion that the Fifth Circuit didn't examine UT-Austin's case of affirmative action thoroughly enough:

The Court concludes that the Court of Appeals did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and Regents of Univ. of Cal. v. Bakke ... Because the Court of Appeals did not apply the correct standard of strict FISHER v. UNIVERSITY OF TEXAS AT AUSTIN Opinion of the Court scrutiny, its decision affirming the District Court’s grant of summary judgment to the University was incorrect."

Those previous cases Kennedy represent the highest court's actions leading up to Fisher. In Bakke, the Court found the University of California's quota system of race admissions unconstitutional; in Grutter, handed down in 2003, the Supreme Court upheld affirmative action policies under the premise that there's a compelling case for student body diversity in the U.S.'s colleges.

In plain English, Kennedy states that the University of Texas — and, by extension, all public universities — would have to make a compelling case that their desire for student body diversity is consistent with Grutter, but he also hints that the current system at UT-Austin, which involves a kind of bonus-points system for minority applicants, may need to be examined further:

Once the University has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation.

Even with those bonus points Fisher would not have gotten in. As ProPublica's Nikole Hannah-Jones explained, Fisher's scores were good, but not good enough:

Court records show her grade point average (3.59) and SAT scores (1180 out of 1600) were good but not great for the highly selective flagship university. The school's rejection rate that year for the remaining 841 openings was higher than the turn-down rate for students trying to get into Harvard.

As a result, university officials claim in court filings that even if Fisher received points for her race and every other personal achievement factor, the letter she received in the mail still would have said no.

But that point might be moot, if the Court finds the system broken. "Strict scrutiny must not be strict in theory but feeble in fact," Kennedy wrote in his opinion, adding, essentially, that affirmative action plans are constitutionally viable so long as a school has "no workable race-neutral alternatives would produce the educational benefits of diversity." The case has been "remanded" — or sent down — to the Fifth Circuit. So there remain many more legal battles for both sides ahead, in the University of Texas's estimation now, and more cases on the docket beyond.

The first major sign from the court that it looked like we weren't going to get a major decision in Fisher came five months after the oral arguments, when the justices announced that they were going to hear the case of Michigan's Proposal 2, which allowed for that state's public universities to eliminate preferential treatment to any individual group based on race, skin color, or ethnicity. This came less than a decade after another affirmative action case concerning the University of Michigan. The conservative justices, as ProPublica's Hannah-Jones explained to NPR, appear to be pushing for sweeping change on race-blind admission, and their doubling down with the new Michigan case indicated at the time that the Fisher case didn't provide the right opportunity. That looks clearer today.

So today's ruling is now something of a prelude to Schuette v. Coalition to Defend Affirmative Action — the formal name for Michigan's Proposal 2. The voter referendum was added to the state's constitution but quickly became the subject of lawsuits and endless delays before being struck down twice by the U.S. 6th Circuit of Appeals — first by a 2-1 vote in July 2011, and then by an 8-7 vote in November of last year. The Supreme Court's Michigan case has the potential to be more sweeping, as it would affect every public school in Michigan — and perhaps sets a precedent across the country — while Fisher's suit would have only applied to students at the University of Texas's main campus in Austin.

The Supreme Court did not announce decisions in the long awaited double cases on gay marriage, or on the repeal of a key section of the Voting Rights Act. But there will be more decisions announced on a special added day in Court rulings tomorrow, followed by at least one more before the end of the Spring term, possibly Wednesday and Thursday.

This article is from the archive of our partner The Wire.