The Supremes, Round One: Fisher v. University of Texas

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The U.S. Supreme Court made the right ruling yesterday in Fisher v. University of Texas by remanding the case to a lower federal court (this morning, the court also issued a ruling on the Shelby County case, which I’ll post about later today). My concern about the Abigail Fisher case all along has been that she did not have an academic record that made her a suitable plaintiff in the case. There was nothing in her past that indicated outstanding achievement, including her test scores. Furthermore, at the time that she filed her case, she had already enrolled at Louisiana State University. It seems silly to me that there should be a big furor over a student who clearly had no current interest in attending UT.

What is most interesting about the case is the Court’s reluctance to go all the way in dispensing with affirmative action. It’s pretty clear that the justices want to do it, but in doing so they risk inflicting extreme damage upon themselves and the country: namely, they would legitimatize the resegregation of higher education. Here is some excellent commentary from ScotusBlog:

Here is the explicit order the Justices sent to the Fifth Circuit for what it must now do: Do a two-step analysis. In the first step, it is fine to rely upon the university’s good faith belief that there is an educational benefit in using race as one — but definitely not the only one — factor in choosing the students it will admit.  But, then, apply a second step, in which the university gets no benefit for a good faith belief in the need for the specific implementing steps it wants to take to actually achieve a form of “racial diversity.”

In this second step, the university has to prove to a court that it has first tried some other methods of encouraging minority students to enroll that do not give any consideration, whatsoever, to race.   If those other methods are “workable,” that’s probably the end of the inquiry: race cannot then be used at all.

Such alternatives do not have to promise to work as well as a racial factor might in increasing minority enrollment; it is sufficient if they would promote that goal “about as well,” according to the opinion.   Although a university does not have a legal duty to have canvassed “every conceivable” non-race alternative, it must go through such a review process with “care,” and it gets no deference for what it ultimately concludes, the Court said.

If the university then reaches the point that it has shown that it will be ”necessary” to take some account of race, it must then satisfy a court that “its admissions program is narrowly tailored to obtain the educational benefits of [racial] diversity,” according to the Kennedy analysis.

Here is the way the opinion recited that ultimate test: “A university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that encompasses a broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”

AP Photo | Susan Walsh

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