SCOTUS Signals it Will Wait Until Later to End Affirmative Action


On Monday the Supreme Court told a lower court to take another look at an affirmative action admissions policy at the University of Texas, avoiding for now a broad ruling on the constitutionality of race-based admissions policies but teeing the issue up for future action.

Justice Anthony Kennedy authored the 7-1 decision, and the opinion offers some troubling glimpses of what lies ahead. According to the Court, affirmative action plans are constitutional only if racial preferences are the only way to achieve diversity on campus. This means those programs are likely to face far more scrutiny in the future. Kennedy said the University of Texas’s plan could withstand constitutional scrutiny only if the university could prove that “no workable race-neutral alternatives would produce the educational benefits of diversity.”

But because the challenge at the lower court was decided on summary judgment and not after a full trial with evidence, the Supreme Court didn’t ultimately answer whether or not the university’s program met this standard. Instead, Justice Kennedy and the majority sent the case back to the lower court for it to determine if the university could come up with this new, precise standard.

The challenge was launched by Abigail Fisher, a woman who claims she was denied admission to the University of Texas in 2007 because she was white. The university’s policy was to accept the top 10 percent of students from each Texas high school. Because Texas neighborhoods remain extremely segregated by race, this policy resulted in a relatively diverse incoming class. It then filled the remaining slots of the freshman class by assessing a number of factors, including race, in a system the university claims was devoid of quotas or numerical targets but still designed to achieve “critical mass” in terms of racial diversity.

Justice Elena Kagan recused herself from the decision because she was solicitor general when the Obama administration weighed in on the case. Justice Ruth Bader Ginsburg dissented.

In a sense, the decision is a punt. It didn’t strike the admissions policy, which many expected it to do. But given the split of the justices, it appears as though the votes may be there to do so in the future. The Court is already taking up one more affirmative action challenge next term, and with the explicit instructions to courts in today’s decision, it’s clear race-based affirmative action programs are in trouble. Justice Kennedy and the majority told universities they must be able to prove that the reasons for any racial classification, even one that is designed to promote the educational and cultural benefits of a diverse student body are clearly identified, unequestionably legitimate, and that they can’t be achieved in a race-neutral fashion.

This framing sets up a big issue for a future fight. Justice Kennedy and the majority “assumes” that racial diversity remains a compelling interest for universities but wants courts to make that finding explicit. That’s an invitation for an increasingly conservative federal judiciary to revisit whether or not diversity is something government bodies should promote and whether or not the law allows race in any capacity to be a factor in achieving that goal. As the Court wrote:

[A] university’s ‘educational judgment that such diversity is essential to its education mission is one to which we defer. … A court, of course, should ensure that there is a reasoned, principled explanation for the academic decision.

It is, essentially, the articulation of the post-racial fantasy the conservative wing of the Court, and this country, perpetuates. The conservative majority suggests that the equal protection clause of the 14th Amendment means that race can never be considered in admissions policies, a belief that strips the clause and amendment from its historical roots entirely.

True, a court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes. But, as the Court said in Grutter, it remains at all times the University’s obligation to demonstrate, and the Judiciary’s obligation to determine, the admissions processes “ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.”

According to the majority, the lower court got it wrong when it “presumed” the university was acting in good faith in adding race as one factor in its admissions. Instead, according to the majority, for the judiciary to do its job in reviewing race-based programs it must require the university show this policy is effectively the only way to meet that goal.

The case now returns to the lower courts, which must decide whether the university can produce evidence that there is no other race-neutral policy that would achieve the same goal and sets up for a future, different challenge the question of whether racial diversity is a compelling interest after all.

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