The Court’s Affirmative Action Ruling

The first of the four highly controversial Supreme Court rulings to be released this week (the other three being the Prop 8 case, the DOMA case and the Voting Rights Act case) was Fisher v University of Texas, which involved affirmative action in college admissions. Many liberals were afraid that the court would go all the way and forbid all consideration of race in college admissions, but the court did not go that far — and got a surprisingly broad 7-1 ruling (Kagan had recused herself) for a mixed result. Richard Sander, a UCLA law professor, explains what the ruling does:

In 2003, the last time the Supreme Court took up the issue of racial preferences in higher education (the case of Grutter v. Bollinger), Justice Kennedy was in dissent. Unlike his more conservative colleagues, he did not completely reject the idea that racial preferences (in that case, preferences extended by the University of Michigan Law School) could pass constitutional muster. But in his view, Justice O’Connor (who wrote the deciding opinion in favor of the university) was giving the Law School far too much deference. While O’Connor held that a racial preference program must be “narrowly tailored” to achieve the university’s interest in diversity, and laid out a series of tests that narrow tailoring implied, she deferred to the university’s judgment and “good faith” to a remarkable degree, giving the university the benefit of the doubt, on one issue after another, that its racial preferences really were a temporary, last resort to achieve educational diversity. Kennedy argued that strict scrutiny really must be strict and exacting.

Today, Kennedy’s holding in Fisher v. University of Texas makes precisely this point. In vacating the Fifth Circuit’s holding for the university, Kennedy wrote that the university is not entitled to any deference in showing that its racial preference program is narrowly tailored to achieve the university’s interest in a diverse educational environment. Kennedy was able to command a broad majority in the case by holding that while the Court would not overrule Grutter, it would insist on a Grutter with teeth – a Grutter that takes its own standards for acceptable racial preferences seriously.

This is not the sweeping repudiation of racial preferences that many conservatives hoped for, and that the higher education establishment greatly feared. But it is a break with the Court’s earlier decisions on affirmative action in higher education. In these earlier cases (Bakke, Gratz, and Grutter), the Court struck down specific, rigid sorts of racial preferences (a racial quota in Bakke, a system that gave points for race in Gratz) but essentially winked to universities that racial admissions preferences would be tolerated if they were not overtly aggressive and inflexible. And after those earlier decisions, the actual size and scale of racial preferences in higher education changed very little. Justice Kennedy’s opinion invites – though certainly by itself does not achieve — a new era of much tighter regulation of preferences.

Kennedy’s opinion is a rebuke, though a gentle, subtle one, to Justice O’Connor’s Grutter holding. The Fifth Circuit relied directly on O’Connor’s opinion in explaining why it is giving so much deference to the University of Texas. In vacating the Fifth Circuit opinion, Kennedy was able to criticize O’Connor without mentioning her directly, but there is no mistaking that her widely criticized language in Grutter was his actual target. Justice Ginsburg, in her lone dissent to Kennedy’s opinion, fairly points out that the Fifth Circuit was following Grutter; Kennedy’s point, and one that he brought a broad cross-section of the Court to agree upon, was that the application of Grutter’s standards was too vague to meaningfully regulate university conduct. The implication of Kennedy’s ruling – though here Kennedy provided few details –- is that a university must prove that specific educational benefits are achieved by the school’s use of racial preferences; that there is no other (race-neutral) way to achieve those benefits; that individuals receiving preferences are evaluated based on their specific diversity contributions; and that the university has some concrete plan for phasing racial preferences out over time.

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