In this Supreme Court’s much awaited first ruling on affirmative action, the justices basically decided not to decide. The tortured non-ruling the court issued yesterday left eager observers scratching their heads. After months of anxious waiting for what many believed would be affirmative action’s death knell, what exactly does this ruling mean for admissions policies that consider race? Settle in and let’s translate the legalese together.
What Was Decided?
An important, if technical detail. In a seven to one decision, a coalition of liberal and conservative justices agreed that the lower courts had not properly applied the “strict scrutiny” standard of review—essentially, the constitutional test for when government can consider race—when they weighed Abigail Fisher’s complaint against the University of Texas admissions program.
As such, the justices sent the case back to the lower courts to try again. Only Justice Ruth Bader Ginsburg voted to simply uphold the University of Texas program. In her 20 years on the Supreme Court, Ginsberg has been one of the most consistent supporters of civil rights and yesterday’s dissent merely continues that legacy.
Justice Anthony Kennedy, writing for the majority, held that in applying the strict scrutiny test, the lower courts gave too much deference to the university in making decisions on whether to have an affirmative action program and on how it should be structured. The lower courts presumed that the university had followed the law—at least as it is presently defined, by the Supreme Court’s 2003 affirmative action decision. This meant that they left the burden on the plaintiff, Abigail Fisher, to prove that either the law was wrong, or the methods chosen by the university to follow it were wrong. In rejecting the lower court’s decision, the Supreme Court has shifted the burden off of Fisher and onto the university.
The majority ruled that once the university decided to use race in its admissions policy, it—not the plaintiff—assumed the burden of demonstrating that it could do so in accordance with the standards of strict scrutiny. And that means the program requires both a compelling reason to justify itself and a narrowly tailored method of achieving its goals.
The court’s previous decisions have established the law allows universities some leeway toward the goal of achieving diversity, if a university’s choice to consider race is “essential to its educational mission.” But even this limited deference does not apply to the means chosen to reach a diverse end. As Justice Kennedy wrote yesterday,
“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 obtain diversity are narrowly tailored to that goal. On this point the University receives no deference.”
As a practical matter, this means that the University of Texas affirmative action plan remains in place, at least for now.
For the supporters of affirmative action this is certainly a tactical victory, but one that might not last.
Justice Kennedy’s opinion sent clear signals to the lower court that not only does the university carry the burden of proof, this burden is becoming increasingly difficult to meet. He reiterated the necessity that race not be a dominant factor in admissions and that each applicant be treated as an individual. More importantly, he added that a court, not the university must be satisfied that a race neutral system would be unworkable in achieving its goals for diversity. This is particularly significant for the University of Texas, since its affirmative action system operates alongside a race-neutral one, and the lower courts may well decide the colorblind effort creates enough diversity on its own.
But What Wasn’t Decided?
All seven justices agreed that they were not deciding whether race could ever be used in university admissions. The plaintiff’s attorneys decided to steer clear of that issue and instead concentrate on the implementation component of strict scrutiny—on the half of the constitutional test that says the means to the justifiable end must be narrowly tailored. Politically, the plaintiffs calculated that it was too soon to attack head on the court’s 2003 affirmative action decision, in Grutter vs. Bollinger.
But those who oppose affirmative action figure that if its implementation can be found to be incompatible with half of the constitutional test, then it is only a matter of time before the goal of diversity will fail the other half of the test.
Justice Thomas, in a lengthy concurring opinion, supported this view of affirmative action’s overall incompatibility with the Constitution.
As he has done in the past, he characterized affirmative action as liberal paternalism, completely out of step with the proper application of strict scrutiny, and he compared the arguments supporting affirmative action to the rationales for segregated schools in the days of Jim Crow.
And So What Happens Now?
The Fisher vs. University of Texas decision will certainly be debated hotly as lawyers from both sides try and figure out the next steps.
Conservatives may be betting that when “properly applied” the Texas admissions program will fail the narrow tailoring component of the strict scrutiny test. The University of Texas is a large, complex institution and by its own admission had achieved strong diversity in some schools and some departments, but weak results in others. Texas gets a substantial number of students of color through its “Top Ten Percent” system, which guarantees admission for the top students from each high school graduating class. But according to the university, this “race neutral” system alone did not and cannot meet its goals for diversity. Now they have to convince a court that this is true. Goals and methods can get very complicated in a large university. Fisher’s lawyers are hoping that this very complexity will be the university’s Achilles heel as they try and follow the Supreme Court’s narrow tailoring instructions.
For supporters of affirmative action, the hope is that the University of Texas so carefully followed the dictates of the Supreme Court’s 2003 decision that nothing short of overturning that decision would invalidate the program. Justice Ginsburg in her dissent supported this view, arguing that based on the record there was nothing more that Texas could offer to this debate about narrow tailoring.
So at the end of the day a carefully crafted affirmative action admission plan is still consistent with the Constitution—but only so long as a court says that it is, and this court has not offered its final word on the subject. More is surely to come. Next term, the court will hear a case challenging Michigan’s voter-approved ban on affirmative action in college admissions.
Victor Goode is a board member of the Applied Research Center, which publishes Colorlines, and an associate professor at CUNY Law School.