Monday, June 24, 2013

Supreme Court Punts in Fisher v. University of Texas

Recent analyses of the Court have stressed Chief Justice John Roberts' efforts to position the Court as a restrained judicial institution, and not an activist political one.

That said, this ruling may be more significant than meets the eye.

Background at the New York Times, "Justices Send Affirmative Action Case to Lower Court":

Abigail Fisher photo 29scotus1_cnd-popup_zpse00aa536.jpg
WASHINGTON — The Supreme Court on Monday ordered lower courts to take a fresh look, under a more demanding standard, at the race-conscious admissions policy used to admit students to the University of Texas. The 7-to-1 decision was simultaneously modest and significant, and its recalibration of how courts review the constitutionality of affirmative action programs is likely to give rise to a wave of challenges to admissions programs at colleges and universities nationwide.

The brief decision, issued eight months after the case was argued, was almost surely the product of intense negotation among the justices. The compromise they reached was at least a reprieve for affirmative action in higher education, and civil rights groups that had feared for the future of race-conscious admission programs breathed a sigh of relief.

For now, the Texas program and other affirmative action programs can continue without changes.

The decision did not disturb the Supreme Court’s general approach to affirmative action in admissions decisions, saying that educational diversity is a government interest sufficient to overcome the general ban on racial classifications by the government. But the court added that public institutions must have good reasons to use the particular means they use to achieve that goal.

That requirement could endanger the Texas program when it is reconsidered by the federal appeals court in New Orleans. The program admits most students under race-neutral criteria, accepting all students in the state who graduate near the top of their high school classes. But the university also uses a race-conscious system as a supplement.

“Strict scrutiny,” Justice Anthony M. Kennedy wrote for the majority, “does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice.”

Courts reviewing affirmative action programs must, he wrote, “verify that it is necessary for a university to use race to achieve the educational benefits of diversity.” That requires, he said, “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.”

Justice Ruth Bader Ginsburg, who announced her lone dissent from the bench, said the race-neutral part of the Texas program worked only because of “de facto racial segregation in Texas’s neighborhoods and schools.” She said she would have upheld the appeals court decision endorsing the entire admissions program.

The remaining justices, including ones friendly and hostile to affirmative action, agreed on a middle ground, though Justices Antonin Scalia and Clarence Thomas each issued dissents indicating that they would vote to strike down race-conscious admission plans in a future case.

Sandra Day O'Connor and John Paul Stephens were in the courtroom today. Interesting.

More at Memeorandum.

And William Jacobson has a roundup, "Supreme Court Affirmative Action Decision," and Ilya Somin, at Volokh, "Competing Interpretations of Fisher." (That's a must read.)

Also, Amy Howe at SCOTUS Blog, "Finally! The Fisher decision in Plain English."

Plus lots at Althouse, "'It offends me that the court failed to exert any kind of leadership with this decision'," and "'There is disagreement about whether Grutter was consistent with the principles of equal protection.... But the parties here do not ask the Court to revisit that aspect of Grutter’s holding'."

More from Althouse, "The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities'," and "'If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind'."

Here's a whiny piece, from S. Mitra Kalita analysis at Quartz, "The Supreme Court sent the Fisher case back, but make no mistake: Affirmative action is dead." And from Richard Kahlenberg, at Slate, "The Next Affirmative Action?"