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Fisher v. University of Texas: Affirmative Action Lives (Until Next Term, At Least)

In Fisher v. University of Texas, the United States Supreme Court decided by a 7-1 vote to send the case back to the Fifth Circuit to reconsider its decision. The Court held that the Fifth Circuit applied the wrong standard in evaluating the University of Texas’s affirmative action program. The Court held that the “strict scrutiny” standard for Equal Protection cases applies to how to judge such programs.

This case stems from the efforts of Abigail Fisher, a Caucasian female, to have the affirmative action programs at the University of Texas declared unconstitutional. Fisher alleged that she was denied admission to the undergraduate program at the University of Texas because of its affirmative action program. The lower courts upheld the University of Texas program. The Fifth Circuit stated that some deference was due to the judgment of the University of Texas in evaluating whether its affirmative action programs were constitutional.

Writing for the majority, Justice Anthony Kennedy held that this element of deference to the university’s judgment was incorrect. Kennedy analyzed the strict scrutiny analysis applicable to these equal protection cases. Under that analysis, Kennedy first reaffirmed the basic proposition that seeking racial diversity may constitute a compelling governmental interest that the government may pursue. Kennedy also stated settled law in finding that once a compelling governmental interest is demonstrated, the state must narrowly tailor its policies to achieve that interest.

While the Court rearticulated the deference allowed to diversity as a compelling interest (and affirmedBakke v. Regents of the University of California and Grutter v. Bollenger) Kennedy rejected the narrow tailoring analysis of the Fifth Circuit. In essence, the Fifth Circuit failed to apply the rigor required by strict scrutiny to determine whether the policy is narrowly tailored to meet the compelling governmental interest. Kennedy emphasized that though a court may give deference to a University’s compelling interest in diversity and its expertise in designing diversity programs, the deference does not extend to the analysis a court must undertake:

Once the University has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation. The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference. [. . .] 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, that 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.” (Slip. Op. at 10.)

This holding may make affirmative action more difficult to defend in future lawsuits. Fisher appears to raise the evaluative bar by which courts must evaluate affirmative action. Universities now must demonstrate (without any deference to their judgment) that race-conscious affirmative action is a necessary practice and that other approaches would not accomplish the interest in achieving diversity. They must show that non-race-conscious approaches are insufficient, and that race-conscious approaches are the most affective. Under this standard, the Fifth Circuit must now reconsider their initial ruling.

Though this opinion makes it more difficult to defend affirmative action, it did not end affirmative action. Contrary to what many feared, the Court did not overrule Bakke and Grutter. Seeking racial diversity in undergraduate admissions and other educational and employment contexts is still a valid compelling governmental interest. For the time being, public universities pursuing affirmative action policies may continue to do so.

But this may be a short-lived victory for proponents of affirmative action. At best, this opinion can only be read as a narrow decision that largely restated long-standing law without taking a definitive stand concerning affirmative action. It punted a broader consideration of the constitutionality of affirmative action to another day.

Indeed, another affirmative action case will be argued before the Court this fall. The Court granted cert to the Michigan case of Schuette v. Coalition to Defend Affirmative Action in March. In Schuette or some other case, the Court will have to squarely confront the constitutionality of affirmative action. And the standard articulated in Fisher may make that case far more difficult—if not virtually impossible—for advocates of affirmative action to prove.

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