Justice Ginsburg’s Dissent a Roadmap for Defenders of Affirmative Action

Ginsburg alone said the Supreme Court was silly to settle for such a technical ruling when they had plenty of information to dispense with Fisher's case right now.

By Julianne Hing Jun 24, 2013

The Supreme Court has left affirmative action alone for now, even as they’ve indicated that race-conscious admissions policies stand on shaky legal ground. But Justice Ruth Bader Ginsburg used her dissent to provide an outline for the University of Texas to follow, as it will presumably continue to defend its admissions program when the case returns to the Fifth Circuit. 

In his majority opinion, Justice Anthony Kennedy wrote that the lower Fifth Circuit Court didn’t properly examine whether the University of Texas’ admissions policies fulfilled a compelling state interest, as they’re required to do by Grutter v. Bollinger, a prior Supreme Court ruling. Ginsburg disagreed.

"In my view, the courts below adhered to this court’s pathmarking decisions and there is no need for a second look," Ginsburg said today when reading her dissent aloud, the AP reported. The Supreme Court had sufficient information to gauge whether the University of Texas complied with the legal standard set by Grutter, and according to Ginsburg, their program is constitutional.

Still, Ginsburg wrote for just herself, while Justice Clarence Thomas wrote in a concurring opinion that he’d overturn Grutter altogether. She used her opinion to lay out a framework for the University of Texas to follow, and to push back on the arguments made by the plaintiff, a white Texan named Abigail Fisher who was denied admission to the university.

Eliminating race and using race-blind alternatives could be able to produce a diverse student body to a satisfactory degree, Fisher argued, and so race-conscious admissions ought to be eliminated. Fisher stood in favor of Texas’ Top 10 Percent Plan, which automatically accepts a portion of the top graduates from each Texas public high school, and the separate admissions process Texas uses to round out its incoming class, which takes other factors, of which race is but one, into account. The Top 10 Percent Plan seemingly race-neutral, yet because of enduring residential segregation that determines where students go to school, "race consciousness, not blindness to race, … drives such plans," Ginsburg wrote.

"[O]nly an ostrich could regard the supposedly neutral alternatives as race unconscious," Ginsburg wrote. 

Universities and public institutions have no need to hide from the "legacy of ‘centuries of law-sanctioned inequality,’" and that race-consciousness is preferable to some backdoor effort to address inequity by concealing the mention of it. And because, Ginsburg pointed out, the University of Texas "flexibly" considers race as but one of many factors in its admissions process, and puts its admissions program up for regular review to determine whether its consideration of race is still a necessary part of its admissions process, its programs are constitutional. 

There’s still a chance for the Supreme Court to dismantle the deeper underpinnings that are holding affirmative action together when the Court revisits the practice in its next term.

Read the Supreme Court opinions, along with Ginsburg’s dissent, here (PDF).