As everyone expected, the Supreme Court has rejected a court of appeals decision upholding the racial preference regime used by the University of Texas in college admissions. In Fisher v. University of Texas, the Court held that the Fifth Circuit Court of Appeals applied the incorrect standard. Thus, it sent the case back for further review under the appropriate standard.
Under the appropriate standard, the Supreme Court said, a university must prove that the means it chooses to attain racial diversity are narrowly tailored to that goal. This means that a reviewing court must verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity. The court must carefully inquire whether a university could achieve sufficient diversity without using racial classifications. And the university receives no deference on that question.
The decision was 7-1, with only Justice Ginsburg dissenting. Justice Kennedy wrote the opinion. Justice Kagan recused herself.
I had hoped, but not expected, that the Court would strike down or “gut” the Grutter decision, which held that universities can use race to some extent to achieve a “critical mass” of diversity that supposedly benefits students. Instead, the Court reaffirmed Grutter[note: the Court stated that it wasn’t going to consider the correctness of Grutter because the petitioner didn’t challenge it]. Only Justice Thomas and Scalia expressed the view that Grutter should be overturned (Scalia noted that the petitioner did not ask the Court to overturn Grutter). Justice Kennedy had dissented in Grutter, but he wrote the opinion preserving it.
Thus, once again the Court has failed to pull the trigger on racial discrimination in college admissions. But has the Court at least reined in such discrimination?
I’ll reserve judgment on that until I have had more time to consider the opinion. I’m skeptical that liberal Justices Breyer and Sotomayor would sign on to an opinion that meaningfully cuts back on discrimination by colleges in favor of minority group members. It’s possible, however, that they did so as the only way to preserve Grutter.
The majority emphasized that the strict scrutiny that applies in reviewing the use of racial preferences by a university “must not be strict in theory but feeble in fact.” As formulated (see the second paragraph of this post), I think the standard articulated today in Fisher has the potential to be more strict than feeble.
In the end, however, the impact of today’s ruling depends on how courts of appeals apply the Supreme Court’s “appropriate” strict standard. In other words, it looks like the can has been kicked down the road. But as I said, I’m reserving judgment.