Supreme Court releases Fisher affirmative action case

The Supreme Court decides the affirmative action case by deciding not to decide. Photo: AP

WASHINGTON, June 24, 2013—The United States Supreme Court released one of its long awaited decisions today. In Fisher v. University of Texas at Austin, the Court vacated and remanded the case to the Fifth Circuit Court.

In plain English, that means the Supreme Court thinks the lower court, the Fifth Circuit, did not hold the University to the demanding burden of strict scrutiny articulated in the earlier Gutter and Bakke decision. Therefore, the Fifth Circuit Court must re-examine its own decision.

In other words, the Supreme Court told the lower court to reconsider the case using the appropriate legal standard.

As expected, Justice Anthony Kennedy wrote the opinion on the 7-1 vote. The only dissent came from Justice Ruth Bader Ginsburg. Justice Elena Kagan recused herself from the case because she was involved in the case at lower levels when she was the U.S. Solicitor General.

Justices Antonin Scalia and Clarence Thomas wrote concurring opinions which, although brief, might be the most interesting opinions of the day. They stated they would have overruled Grutter but that the petitioner did not ask them to do so and, therefore, they concur with Justice Kennedy.

The opinions by the court appear to reaffirm that diversity is a compelling interest.

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Several Justices refered to Grutter v. Bollinger, in which the Supreme Court in 2003 upheld the affirmative action admission policy of the University of Michigan Law School. In that opinion, written by Justice Sandra Day O’Connor the Court held that a race-conscious admission process may favor under-represented minority groups but since Michigan also took into consideration other factors, it did not create a quota system.

Justice Scalia and Justice Thomas disagreed with the majority opinion in the case.

A quota system would be unconstitutional under Regents of the University of California v. Bakke.

Affirmative action has existed on college campuses since the 1960s, with the intention of bringing diversity to what had been virtually all white institutions. Most colleges today consider race as part of an effort to create a multiracial student population, which they deem as important to higher education. As a result, blacks and Hispanics now make up about a quarter of college and university populations

Fisher v. University of Texas challenged the policy of UT to consider race as a factor for admission. UT fills the majority of admission slots to the top ten percent of Texas high school graduates. The remaining 19 percent of spaces are filled by students who meet other qualifications. In this program, the University considers awards, extra-curricular activities, community service, and other factors, including race. The University considers race to promote diversity.

Abigail Fisher, who is Caucasian, applied for admission to the University. She was not in the top ten percent of her class, and she did not receive one of the remaining slots. She then challenged that decision, saying she was a victim of discrimination based on her race in violation of the Fourteenth Amendment’s Equal Protection Clause. Both the federal district court and U.S. Court of Appeals for the Fifth Circuit upheld the Texas plan.

Justice Kennedy said in his opinion the University of Texas at Austin’s affirmative action plan could withstand constitutional scrutiny only if the University could prove that “no workable race-neutral alternatives would produce the educational benefits of diversity.”

Ultimately, however, the Justices refused to answer that question themselves. Instead, it said the lower court must weigh that question and issue a decision.

Race as an admission policy into colleges and universities has been argued in the courts back as far as 1950, when Herman Sweatt sued after not gaining admision to college. His attorney, Thurgood Marshall, who would go on to become the first black Supreme Court Justice, won the case marking the first time an all-white institution was forced to admit a black student.

The Court took more than eight months to render an opinion on Fisher, raising speculation about the reasons for the delay. Many observers believe the opinion was re-written at least once.

The Court has yet to decide three highly-anticipated cases: Windsor, Perry and Shelby, examining the issues of gay and voting rights. There are six total cases left to decide from this current term total.

Observers believe the Court will issue one more ruling later this week. 


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Susan L Ruth

Susan L. Ruth is a long-time Washington, DC resident with extensive ties throughout the community.  She is a genealogical researcher and writer, and is an active volunteer in the Northern Virginia competitive swimming community.  Susan previously worked providing life-skills to head injured adults. 

Susan and her husband Kerry currently live in Northern Virginia with their three sons, Ryley, Casey and Jack and their American Bulldog, Leila.


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