WASHINGTON — The Supreme Court today sent its case on affirmative action back to a lower court to verify whether the policy in question satisfies a stricter constitutional requirement, leaving the question of the constitutionality of affirmative action practices across the county unanswered.
In its 7-1 ruling in Fisher v. University of Texas at Austin, the Court held that the previous judgment of the Fifth Circuit Court of Appeals failed to “hold the University to the demanding burden of strict scrutiny.” With Justice Elena Kagan recused from the case, Justice Ruth Bader Ginsburg was the lone dissenter.
The plaintiff in the case, a white woman named Abigail Fisher, sued the University of Texas in 2008, claiming that she was denied admission because of her race. That racial classification, she argued, was a violation of the Equal Protection Clause of the 14th Amendment to the Constitution.
The time between oral arguments in front of the Supreme Court in October and the justices’ ruling Monday is one of the longest in the Court’s history.
The decision specifically identified that strict scrutiny should apply both to the goal of racial diversity on college campuses and to the means used to achieve that objective.
“Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice,” Justice Anthony Kennedy wrote in his majority opinion.
Additionally, the Court explained that affirmative actions must be “narrowly tailored” such that “no workable race-neutral alternatives would produce the educational benefits of diversity.” UT admits all applicants who graduate in the top 10 percent of their high school classes, a policy which some argue already ensures sufficient class diversity.
Ginsburg, the lone dissenter in the case, took issue with this application of strict scrutiny.
“I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious,” she wrote. “Texas’ percentage plan was adopted with racially segregated neighborhoods and schools front and center stage.”
Ginsburg, in a move somewhat unusual at the Court, read a portion of her dissenting opinion from the bench.
In August, Penn joined with the rest of the Ivy League and several other highly selective institutions, including the Massachusetts Institute of Technology and Stanford University, to file an amicus curiae brief expressing the schools’ support for the UT affirmative action policy. Penn, like many other universities, uses race as a factor in a “holistic” review process of applicants, Dean of Admissions Eric Furda said at the time.
A broad ruling on the use of racial classifications in admissions was expected to directly impact Penn, since Title VI of the Civil Rights Act bans racial discrimination by programs that receive federal funding — such as Penn, Senior Vice President and General Counsel Wendy White said.
While many experts believed that the Court would issue a broad ruling on the constitutionality of affirmative action more generally, that decision may have to wait for further litigation.
“The Court has signaled with this decision that it is not ready at this time to break new ground in its holdings on the role of race in admissions policies,” political science professor and constitutional law expert Rogers Smith said. “This does suggest that the University will need to show that it can’t achieve its diversity objectives by race-neutral means, but it doesn’t represent any overturning of existing doctrines.”
Justice Kennedy had previously expressed skepticism about race-conscious affirmative action policies in a dissent in a 2003 affirmative action case, Grutter v. Bollinger.
Grutter held that the use of race as one factor among many in a narrowly tailored admissions policy is consistent with the 14th Amendment. Many believe that the Court decided to hear this year’s case in order to re-examine the core holdings of Grutter.
Justice Clarence Thomas wrote a concurring opinion expressing his view that Grutter should be overturned, as many expected the Court to do in Monday’s decision.
The Supreme Court will have an opportunity to revisit the more sweeping constitutional implications of affirmative action after the lower court issues a new ruling, or in another case challenging a Michigan affirmative action ban that the Court will hear next term, which begins in October.
However, there is some disagreement as to whether the Court will look to create broad new constitutional doctrine on affirmative action given today’s decision.
“You couldn’t say on the basis of these voting patterns that the Court is ready to overturn Grutter,” Smith said. “The question all along has been whether Justice Kennedy is prepared to push further toward banning the use of race, and his pattern has been not entirely clear.”
The majority opinion’s request that the lower court evaluate race-neutral alternatives may indicate that Kennedy — considered to be the swing vote in many contentious cases before the Court — may “continue to push his colleagues to ratchet up strict scrutiny to the point where fewer admissions policies that consider race are deemed acceptable than they have been under Grutter,” Smith added in an email.
In the oral arguments in October, lawyers for Fisher argued that UT’s top 10 percent policy was sufficient to achieve diversity. A Daily Pennsylvanian analysis of admissions data revealed that of students admitted to the school through the top 10 percent program in 2010, over half represented minority groups.
Penn’s amicus brief directly responded to this claim, arguing that mandating diversity be achieved only through “mechanistic” policies such as the one in question would compromise the schools’ holistic review processes. The brief cited the opinion in Grutter which held that such a decision would “preclude the university from conducting the individualized assessments necessary to assemble a student body that is not just racially diverse, but diverse along all the qualities valued by the university.”
That decision was authored by Justice Sandra Day O’Connor, who has since retired from the Court. Her replacement, the more conservative Justice Samuel Alito, is often considered to be an opponent of affirmative action.
Regardless of the Court’s final ruling on affirmative action — or even whether that ruling will come at all — Smith said he expects “continuing litigation” on which affirmative action policies are acceptable, and why.
“This case indicated that the court’s struggles, and America’s struggles, over the place of race in policymaking are not over.”
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