The Supreme Court Goes Small on Affirmative Action

While Justice Thomas condemns it in a strongly worded opinion

Robert Saferstein and Brei Gussack line up in front of the Supreme Court in Washington, Monday June 24, 2013. (National Journal)

In a 7-1 decision, the Supreme Court vacated and remanded the Fifth Circuit's decision in the Fisher v. University of Texas affirmative action case. Justice Ginsburg was the lone dissent, with Justice Kagan recused. In effect, the decision sent the case back to the lower court, with no major decision here on the fate of affirmative action in the United States. Here's Justice Kennedy writing in the majority opinion:

The District Court and Court of Appeals confined the scrutiny inquiry in too narrow a way by deferringto the University's good faith in its use of racial classifications and affirming the grant of summary judgment on that basis. The Court vacates that judgment, but fairness to the litigants and the courts that heard the case requires that it be remanded so that the admissions process can be considered and judged under a correct analysis.

The decision, while obviously not a major one, took the court a uniquely long time to decide. The court heard arguments in the case last October.

While the court as a whole did not have much to say on affirmative action in the decision, Justice Clarence Thomas in his opinion said that he personally would've overturned the use of race in making admissions decisions in higher education:

I write separately to explain that I would overrule Grutter v. Bollinger, 539 U. S. 306 (2003), and hold that a State's use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.

Later, in his opinion, he explained his thoughts on the larger matter of affirmative action in higher education.

Attaining diversity for its own sake is a nonstarter. As even Grutter recognized, the pursuit of diversity as an end is nothing more than impermissible "racial balancing." ... Rather, diversity can only be the means by which the University obtains educational benefits; it cannot be an end pursued for its own sake. Therefore, the educational benefits allegedly produced by diversity must rise to the level of a compelling state interest in order for the program to survive strict scrutiny.

Justice Thomas also compared affirmative action in education to segregation in the South:

It is also noteworthy that, in our desegregation cases, we rejected arguments that are virtually identical to those advanced by the University today. The University asserts, for instance, that the diversity obtained through its discriminatory admissions program prepares its students to become leaders in a diverse society... The segregationists likewise defended segregation on the ground that it provided more leadership opportunities for blacks.

In her dissent, Ginsburg argues that there was enough in the case to make a firm ruling in favor of the university's practices. Race, she says, is a factor no one can ignore in college admissions.

Petitioner urges that Texas' Top Ten Percent Law and race-blind holistic review of each application achieve significant diversity, so the University must be content with those alternatives. I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious.

She continues:

"I have several times explained why government actors, including state universities, need not be blind to the lingering effects of 'an overtly discriminatory past,' the legacy of 'centuries of law-sanctioned inequality.' "¦ Among constitutionally permissible options, I remain convinced, 'those that candidly disclose their consideration of race [are] preferable to those that conceal it.'"

The case was brought forth by a white woman who was rejected admission to the university in 2008. The woman, Abigail Fisher, argued that the university unfairly used race quotas in the admissions process and therefore made entry more dificult for her and allowed less-qualified racial minorities to get in. The university argued that Fisher did not meet the qualifications for admissions, regardless of her race.

The university said that it has the right to assemble a student body that reflects its mission. And because of inequality throughout the state, diversity in the student body must be assisted. That's where the university's policy comes in. The school guarantees admission for high school students who finish in the top 10 percent of their class. Race is a factor for the remaining quarter of students admitted to the university.

The affirmative action case is just one of the four major cases the Supreme Court is expected to issue opinions on this week related to equality. But as David A. Strauss, a law professor at University of Chicago, told the New York Times' Adam Liptak, "It's hard to imagine somebody happy with everything" that the court decides. "Aside from Justice Kennedy."

Here are some quick takes from around the Internet on the decision.

#scotus affirmative action in admissions is not exactly dead, but the prognosis looks terminal to me.

— Jeffrey Toobin (@JeffreyToobin) June 24, 2013

Question now is whether Texas admissions policy can withstand strict scrutiny Justices now requiring here. Most laws/policies cannot.

— Andrew Cohen (@CBSAndrew) June 24, 2013

Clarence Thomas actually suggested affirmative action was like Jim Crow.

— AdamSerwer (@AdamSerwer) June 24, 2013

The ruling today did not dismantle affirmative action programs, as some expected, but does force more searching inquiry into such programs.

— Chris Geidner (@chrisgeidner) June 24, 2013

From Amy Howe on SCOTUSBlog:"The majority seems to reaffirm that diversity is a compelling interest if only because that rule was not challenged by the plaintiffs in the case."

From Tejinder Singh, also on SCOTUSBlog:

...initially, the word "compromise" seems most appropriate, and "punt" gets there in second place. The Court is clearly not deciding whether UT's program is constitutional or not; it's clearly not overruling Grutter; but it's clearly also sending a signal that it's serious about the "narrow tailoring" rule.

As for this ruling, it's better than many proponents of affirmative action were hoping — as many feared the high court would scrap it completely. In a statement on Monday, Wade Henderson, the head of the Leadership Conference on Civil and Human rights said, "Today's decision is an important victory for our nation's ongoing work to build a more inclusive, diverse America."

A punt by the court, it seems, is better than getting sacked.

But the actual winner in all of the cases decided by the court today? Business, writes University of Maryland Law School professor Mark Graber:

Today's opinions from the Supreme Court highlight how the conservative majority is reverting to judicial practices before the New Deal, but not in the way many commentators expected. The justices are not restoring ancient doctrinal categories or dramatically cutting back on civil liberties. Rather, as was the case in 1915ish, the big winner is business. When business is not involved, the judicial majority is often at least as liberal if not slightly more liberal than the rest of the ruling regime.

And why did this decision take so long to come down? Harvard Law professor Mark Tushnet has some speculation over at Balkinization.

The Supreme Court will meet again on Tuesday morning at 10 a.m., as several cases still have to be decided, including ones on same-sex marriage and voting rights. Tuesday won't likely be the last day for the court with six cases remaining.