The Breakfast Table

Fisher v. University of Texas: Why did the Supreme Court punt the affirmative action case?

Why did the Supreme Court punt the affirmative-action case?

The U.S. Supreme Court building seen in Washington May 20, 2009.
Does today’s ruling mean that schools should keep doing what they’re doing?

Photo by Molly Riley/Reuters

Well, we have the kind of anticlimactic ruling from the Supreme Court, on affirmative action that leaves the big question for another day. In a 7-1 ruling (Justice Elena Kagan sat this one out), the court sent back to the lower courts Abigail Fisher’s challenge to the admissions policy of the University of Texas, Austin. Fisher is the white plaintiff who says she didn’t get admitted as an undergraduate because UT Austin considers race, as one factor among many, in admitting part of each entering class. She didn’t win, but neither did UT. Instead, the court made it somewhat harder for schools to defend race-based preferences in admission—but not impossible. Now schools have to show that “no workable race-neutral alternatives would produce the educational benefits of diversity.” In other words, that the use of race in admissions is a last resort. So, affirmative action is still allowed, and the basis for that hasn’t changed—the goal remains diversity. But lower courts shouldn’t “accept a school’s assertion that its admissions process uses race in a permissible way.” Instead, courts should give “close analysis to the evidence of how the process works in practice.”

The key is that Justice Anthony Kennedy wrote the majority opinion, and as usual, Justice Kennedy made clear that he has some doubts about the race-based preference in front of him, but he’s not ready to shut the door entirely on the whole enterprise of increasing diversity. Justice Clarence Thomas, on the other hand, is ready to slam that door once and for all. That’s what his separate opinion is about. No one signed on to it, though, because Abigail Fisher and her lawyers didn’t ask the court to reconsider whether affirmative action is at odds with the Constitution’s guarantee of equal protection—in other words, to find that white university applicants have a constitutional right against reverse discrimination. So Justice Kennedy just says, “there is disagreement” about whether the court’s 2003 ruling, about the University of Michigan, allowing affirmative action to continue “was consistent with the principles of equal protection in approving this compelling interest in diversity,” and leaves it at that.

I’m going to post more on this later today, but for now, a few questions. Does today’s ruling, which is kind of a punt, mean that schools should keep doing what they’re doing? Or should they read the writing on the wall, assume that the court will soon take the next step and ban the use of race in admissions, and begin to shift, for diversity’s sake, to an admissions policy that concentrates on admitting more low-income students? The court has already decided to hear a case next term about whether it was constitutional for Michigan to bar racial preferences—a case that’s a mirror of Abigail Fisher’s. Michigan’s ballot initiative, passed in 2006, says that the state’s public universities “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” The appeals court in the Michigan case—the U.S. Court of Appeals for the Sixth Circuit—has twice struck down Michigan’s law, saying it’s unfair to minorities. Both rulings were split, though, 2-1 and 8-7. What, if anything, does today’s ruling from the Supreme Court suggest about the outcome of this new case next year? I would say nothing directly, but I bet the court’s conservatives plus Justice Kennedy uphold Michigan’s law. And with 10 states now banning affirmative action, that will matter a great deal in the long run for how colleges do admissions.

And what did you make of Justice Ruth Bader Ginsburg’s interesting and lone dissent? Ginsburg is the only justice who would have approved UT Austin’s admissions policy. She likes it, she said, because it’s transparent: The university “is candid about what it is endeavoring to do: It seeks to achieve student-body diversity,” she writes. Take away overt consideration of race as a factor in admissions, she warns, and you will just drive this practice underground. That’s an implicit critique of some class-based affirmative action programs, which arguably use class as a proxy for race. But is this kind of substitution—admitting more African-American and Hispanic students through preferences for low-income students—actually a bad thing?

More soon, once I digest Justice Clarence Thomas’ concurring opinion calling for an end to affirmative action entirely.