At the beginning of a wild week of decision-making, the Supreme Court stalled on affirmative action Monday, ruling 7-1 in favor of sending Abigail Fisher’s case back to the Fifth Circuit Court of Appeals for further examination.
By re-directing Fisher v. University of Texas at Austin case back to the lower court, SCOTUS avoided taking a firm stance on the question that has been at the forefront of the affirmative action debate: Are race-conscious college admissions constitutional?
For now, the answer is still yes. The Supreme Court upheld Grutter v. Bollinger, a 2003 ruling that permits race to be one of the factors, albeit not the sole one, in university admissions. The Court added that policies should be “narrowly tailored” to meet the university’s diversity goals. In his opinion for the majority, Justice Anthony Kennedy wrote that the lower courts should continue to closely monitor race-conscious admissions processes. Part of this “strict scrutiny” would be to exhaust all other options before elevating race in the admissions process.
The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If ‘a nonracial approach … could promote the substantial interest about as well and at tolerable administrative expense,’ then the university may not consider race.
This is where the decision got dicey. What would a race-blind or “nonracial approach” that fosters racial diversity even look like? Did this ruling foreshadow a dismantling of affirmative action in the Court’s future?
Justice Ruth Bader Ginsburg warned against this notion of a “nonracial” and “race-neutral approach to admissions policies in her lone dissent:
I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious. As Justice Souter observed, the vaunted alternatives suffer from ‘the disadvantage of deliberate obfuscation.’ … if universities cannot explicitly include race as a factor, many may ‘resort to camouflage’ to maintain their minority enrollment.
The University of Texas at Austin already admits 75 percent of each class through the 10 percent program (which is supposed to offer admission to the top 10 percent of each Texas high school’s graduates). The understanding is that since some high schools have higher numbers of minority students, the university will automatically become more diverse, yet the policy can still be seen as being race-blind. For the other 25 percent, race remains one of many other factors to be considered in a case-by-case basis; this is what led Fisher to file her complaint about in 2008, even though her grades and test scores were cited as the grounds for her rejection.