In addition to SCOTUS addressing the Voting Rights Act of 1965 and the Indian Child Welfare Act in its final week, the Court once again addressed the issue of Affirmative Action. Today, I would like to look at and analyze Fisher v. University of Texas at Austin, 570 U.S. ___(2013).
In a 7-1 decision (Justice Kagan took no part in the consideration or decision), The Court ultimately re-affirmed the viability of Affirmative Action but not without first making it perfectly clear that the demanding burden of strict scrutiny articulated in Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) and reiterated in Grutter v. Bollinger, 539 U.S. 306 (2003) must be adhered to and complied with without fail.
The history of the case reveals that the petitioner, who was rejected for admission to the University of Texas, sued the University alleging that its consideration of race in admissions violated the Equal Protection Clause. The District Court granted summary judgment to the University and the Fifth Circuit Court of Appeals upheld the University's admission plan in light of Grutter.
In the decision of the Court, authored by Justice Kennedy, the Court held that the Fifth Circuit did not apply the correct standard of strict scrutiny, its decision affirming the District court's grant of summary judgment to the University was incorrect and, as such, its decision is vacated that the case is remanded for a further hearing on whether the University improperly considered race in admissions.
The Court takes a "walk down memory lane" in its discussion of previous cases dealing with Affirmative Action.
The Court notes that in Bakke, Justice Powell, writing for the Court stated that "any racial classification must meet strict scrutiny, for when government decisions 'touch upon an individual's race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.'" Furthermore, Justice Powell stated that one compelling interest that could justify the consideration of race was the interest in the educational benefits that flow from a diverse student body. However, the interest in securing diversity's benefits was noted to be complex.
The Court also notes that in Grutter the Court reiterated that race may not be considered unless the admissions process can withstand strict scrutiny. Furthermore, Grutter sets forth that "to be narrowly tailored, a race-conscious admissions program cannot use a quota system, but must instead 'remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application.'"
The Court embraces the principle in Bakke that strict scrutiny requires the university to demonstrate with clarity that its "purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary ... to the accomplishment of its purpose."
Justice Kennedy clearly sets forth that the University must establish both that its goal of diversity is consistent with strict scrutiny and that the admissions process also meets strict scrutiny in its implementation. In other words, the University must "prove that the means chosen ... to attain diversity are narrowly tailored to that goal." Justice Kennedy, once again quoting from Grutter says "it remains at all times the University's obligation to demonstrate, and the Judiciary's obligation to determine, that admissions processes 'ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application.'" Furthermore, the court held that "narrow tailoring also requires that the reviewing court verify that it is 'necessary' for a university to use race to achieve the educational benefits of diversity. This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications." In the concluding paragraph, Justice Kennedy writes "strict scrutiny must not be 'strict in theory, but fatal in fact." But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact. In order for judicial review to be meaningful, 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."
Justice Thomas wrote a concurring opinion. He writes that he would hold that a State's use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.
Justice Ginsburg wrote the lone, and brief, dissent. She would not return the case for a second look. She would find that the University's admissions policy flexibly consider race only as a "factor of a factor of a factor of a factor" in the calculus and that Bakke and Grutter do not require any further determinations.
The Court's decision makes it clear that race can still be a factor, but in a very, very limited way. The question raised by this decision is whether it is a precursor to completely barring race as a factor in a future case; that is whether this decision is the Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) of Affirmative Action. Only time will tell.