Law School Faculty Blog
25Jun/13

Yellow Light, But No Stop Sign, for Affirmative Action This Time

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In an unexpected 7-1 ruling yesterday, the Supreme Court declined to put an end to affirmative action in higher education, as some had predicted it might. Instead the Court remanded Fisher v. University of Texas at Austin back to the lower court for determination of whether considering race was “necessary” to achieve the government’s compelling interest in obtaining the educational benefits of student body diversity. Some commentators have described yesterday’s decision as a “punt,” but I suspect that characterization underestimates the impact of yesterday’s ruling, which largely allows affirmative action to continue for the time being.

Yesterday’s decision involved Abigail Fisher’s challenge to the consideration of race as part of a complex calculus of admissions factors by the University of Texas at Austin. The University admits applicants based on either the state’s automatic admission program for Top Ten Percent high school graduates or the consideration of each applicant’s Academic Index and Personal Achievement Index, which includes race as one component. In her dissenting opinion yesterday, Justice Ginsburg described the Texas policy as “flexibly” considering “race only as a ‘factor of a factor of a factor of a factor’ in the calculus,” and therefore, in her view, satisfying the Court’s equal protection framework.

But Justice Anthony Kennedy’s majority opinion insisted that the “strict scrutiny” required for any governmental consideration of race must not be “feeble in fact.” He instructed the lower court to more carefully examine the admissions process “in its implementation” and analyze “the evidence of how the process works in practice” to determine whether considering race is “necessary” to obtain the educational benefits of diversity. The Court further instructed the lower court on remand to examine with care whether the University could achieve “sufficient diversity without using racial classifications,” which in turn requires careful examination of the University’s “serious, good faith consideration of workable race-neutral alternatives.”

On the one hand, the Court’s ruling admonished lower courts to take strict scrutiny seriously and emphasized the heavy burden of justification facing public universities. On the other hand, although the Court clarified the height of the hurdle that universities must clear, it didn’t really raise the bar.

So what’s a university to do in response to today’s ruling in Fisher? Clearly universities should not expect any judicial deference to their assertions that considering race is a necessary means to achieving the educational benefits of student body diversity. The Court clarified that universities bear the burden of persuading courts that no workable race-neutral alternatives would suffice. Only time will tell what types of studies or other evidence will satisfy this burden. And universities would be wise to be quite deliberate about carefully and regularly assessing the need for race-conscious admissions policies.

Yet the Fisher ruling seems to give tacit approval to affirmative action programs, so long as a university can prove that considering race is necessary to achieving the educational benefits of student body diversity. Relying on prior affirmative action precedents, Justice Kennedy’s opinion for the majority invoked the Court’s prior approval of the goal of achieving the benefits of student body diversity as a compelling governmental interest. Because the petitioner in Fisher did not ask the Court to overrule its prior ruling that diversity is a compelling government interest, nothing in Fisher calls that holding into question (as Justice Ginsburg emphasized in her dissent.)

The Fisher decision will have one immediate impact: requiring federal courts to be more involved in actively examining the nitty-gritty of race-conscious university admissions policies. And, for its own part, the Supreme Court will hear another major affirmative action case next term, this one challenging Michigan’s voter-approved ban on affirmative action (which is similar to California’s Proposition 209).

But none of the blockbuster affirmative action cases have grappled with the logical alternative to a university’s consideration of race, which would be to somehow erase race from an applicant’s file. How can a university consider an applicant “as an individual” without consideration of his or her race, which the Supreme Court has characterized as an “important element” of an individual’s characteristics? Asking applicants to erase their race would seem to raise constitutional concerns as complex as those involved in cases like Fisher that challenge the government’s consideration of race.

So for now, a yellow light, but no stop sign, for affirmative action. Perhaps this is fitting, given that our effort to understand and manage the role of race in society is far from over.

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