The Supreme Court today decided the long-awaited affirmative action case of Fisher v. University of Texas at Austin. I wrote up some details of the case here.
Today, the Court did basically what I predicted it would do: it said that the university can still consider race in admissions, but it has to do a better job of explaining why it needs to in order to ensure a diverse student body. In other words, the case was sent back to the lower courts for further proceedings. I was also right that the opinion’s author would be Justice Kennedy. But I was wrong about the lineup: rather to my surprise, the opinion is 7-1, with only Justice Ginsburg dissenting (Justice Kagan was recused).
The reason Kennedy was able to get so many Justices (including Roberts, Scalia, and Thomas) to sign on to his opinion is because the Court expressly refused to consider whether to overrule or cut back on the principle, announced in previous cases, that diversity is a compelling interest in the context of higher education that permits public universities to consider race as a factor in admissions (Scalia and Thomas both wrote separately to explain that, were the question properly before them, they would vote to overrule those previous cases; Roberts and Alito stayed silent, but one imagines they’d probably vote to overrule as well given the opportunity). Rather, the Court today concluded that under the standards announced in those earlier cases (specifically, the 2003 case of Grutter v. Bollinger and Justice Powell’s opinion in the 1978 case of Regents of the University of California v. Bakke), the lower courts that considered Ms. Fisher’s claim were too deferential to the university, and that the case had to be sent back for further proceedings so that the lower courts could consider Fisher’s case under the correct standards.
Kennedy’s opinion does offer some additional guidance for how the inquiry should proceed on remand:
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…. [S]trict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.
But, basically, not much happened today.
The Court did not announce decisions in the marriage or voting rights cases today. Tune in later this week. The next opinion day is tomorrow (Tuesday) at 10 a.m.
