Supreme Court Punts on Affirmative Action Case

4072181665_e917651985At 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.

He wrote,

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.

The Supreme Court will hear another case involving affirmative action next term. You’ll be able to read more about this in the forthcoming issue of Ms. magazine.

Photo from Flickr user Patrick McKay under Creative Commons 2.0 


  1. I dont understand. Is Justice Ginsburg saying we should just allow the use of race always and forever because if the Court says it is illegal, universities will just break the law/create secret unconstitutional policies?

    Isn’t that sort of like saying, if we don’t allow access to firearms based on reasonable measures then people will get them from illegal measures and that’s worse? Or, if we don’t allow corporations to spend money on elections, then they will just illegally create a way around our ruling and spend with impunity so it should all be legal? Or, if we just make heroin/pot/cocaine/meth legal then people can use it safely and so it should be legal?

    If I am misreading her quote, please tell me cuz based on the above, RBG doesn’t seem to be making a lot of sense.

  2. When somebody says, “Strictly admitting only those with the highest SAT scores doesn’t create the most dynamic student body. A campus also needs those who play the cello, or speak Chinese, or play field hockey or are of a different race or ethnicity.”

    Let me ask him/her the following question:
    How do almost 100% homogeneous countries like Japan are doing great in education, research, economy, etc?
    I just can’t understand how one’s skin color is going to bring realistic skill difference.
    Asians are not homogeneous, Chinese, Koreans, Japanese, Indians are totally different in culture and even in race (Indian vs Chinese).
    Even among Whites, Jews, Catholics, Protestants, Agnostics show a massive difference in raised their child which in turn brings diversity

    US govt talk about diversity just to increase Blacks/Hispanics percent in University enrollments at the cost of ignoring millions of well qualified deserving poor Whites/Asians.

    We are all humans and what we earn/learn is alone going to feed us; what same skin color people achieve will never benefit.

    Affirmative Action is nothing but a reverse racism and high-level stupidity

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