Future of Affirmative Action Unclear

On Monday, the Supreme Court issued its opinion in one of the many civil rights cases before it this term. Fisher v. University of Texas at Austin involved a challenge to the University’s use of race as a factor in undergraduate admissions decisions. Ms. Fisher, a white student, was denied admission to UT in 2008. Her suit claimed the denial was based upon her non-minority status rather than her qualifications. UT indicated that the majority of students offered admission is based upon non-racial academic criteria that Ms. Fisher did not possess. The remainder of spots are filled based upon a number of academic, service, participation, and other criteria…including race. The intention behind adding that race component, according to UT, is to maintain a diversity of students that benefits the educational experience. The lower courts upheld the University’s consideration of race as a factor and granted summary judgment for UT.

The Supreme Court decided, by a 7-1 margin, that the grant of summary judgment for the University was inappropriate because the lower courts did not apply the strict scrutiny standards dictated in Grutter (a 2003 case in which the Court held that the use of race for admissions decisions does not violate the Equal Protection Clause as long as its use is narrowly tailored and for the purpose of creating an educationally beneficial diverse student body.) Under strict scrutiny, a policy is essentially considered unconstitutional and the defender of that policy has to prove that there is a legitimate governmental interest to have it declared otherwise.

Justice Kennedy’s opinion asserted that the Fifth Circuit’s decision that the University had acted in good faith in its use of racial criteria shifted the burden onto the wrong party by looking to Ms. Fisher to prove that it had not. The strict scrutiny called for in Grutter clearly places the burden on the University to demonstrate that the methods used do not make race/ethnicity a “defining feature” in the admissions process. The courts then need to assess this demonstration and whether the diversity interest can be met through race-neutral means. This strict scrutiny does not allow the court to just accept an institution’s word that it is using the racial preference properly; it must assess its use under the proper level of scrutiny. And since, as noted by Justice Scalia in his concurrence, the Court was not asked to overturn Grutter, there is no excuse for its dictates not to have been followed.

The lone dissenter, Justice Ginsburg, felt that the Appellate Court had completed a sufficient Grutter inquiry into the use of race as one of many factors considered in the admissions process. In her opinion, returning this case to the lower court is just asking it to do the same job twice. Also, she cautions that it is better that UT was open in its use of racial preference than concealing it.  The undertones seemed to warn of what might happen if these affirmative action programs are eliminated prematurely.

Much can be said about what this presages for affirmative action in general. The Court was clear in its decision that it will hold firm on strict scrutiny when the need arises. The opinion also indicates that there is a strongly held belief that diversity in education can be achieved through means that do not require preference to one group to the potential detriment of another. Might this foreshadow a not too distant end to affirmative action? Given the language in the concurrences of Justices Thomas and Scalia, they appear to have that option on their radar. Both seemed disappointed that the request to overrule Grutter was not made in this case.

So…will this push to enforce strict scrutiny help or hinder the LGBT community in its fight for equality? That remains to be seen.

One could hope that the Court will implement strict scrutiny when deciding the DOMA and Proposition 8 cases. The application of this heightened level of scrutiny would make it impossible to uphold DOMA and validate Prop 8 because there is no legitimate state interest that would meet strict scrutiny in either case.

It appears, however, that the Court (other than Justice Ginsburg) has distanced itself from the premise of a history of discrimination when applying strict scrutiny. In Fisher, the focus moved away from how people have been discriminated against and toward a way of creating diversity without discrimination…a monumental, if not impossible task. As Justice Ginsburg notes in her dissent regarding the other options UT had to increase its minority enrollment, “It is race consciousness, not blindness to race, that drives such plans.”

All in all, Fisher may have led to more questions than answers. It now comes down to how the lower court addresses the scrutiny required when it revisits the case. Either way, the Court may well see this case again.