Supreme Court

Supreme Court Avoids Major Ruling on Affirmative Action, Sends Case Back to Lower Court


In a decision issued this morning, the U.S. Supreme Court avoided entering the political thicket of affirmative action by holding that a lower court applied the incorrect level of judicial review to a public university's use of race in determining undergraduate admissions.

Writing for a 7-1 majority, with Justice Elena Kagan recused and Justice Ruth Bader Ginsburg in dissent, Justice Anthony Kennedy held in Fisher v. University of Texas at Austin that in cases where the government employs racial classifications, the courts must treat such actions as "inherently suspect" and subject them to the most searching form of judicial review available, an approach known as "strict scrutiny." As he explained, "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 . . . broa[d] array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.'"

In its decision below in favor of the University of Texas, however, Kennedy found that the U.S. Court of Appeals for the 5th Circuit failed to apply this rigorous standard and instead granted too much deference to school officials:

The District Court and Court of Appeals confined the strict scrutiny inquiry in too narrow a way by deferring to the University's good faith in its use of racial classifications and affirming the grant of summary judgment on that basis. The Court vacates that judgment, but fairness to the litigants and the courts that heard the case requires that it be remanded so that the admissions process can be considered and judged under a correct analysis.

The upshot is that the Supreme Court's jurisprudence on affirmative action remains unchanged—for now.

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  1. I remember being taught in school that Supreme Court justices had lifetime appointments to allow them to make controversial decisions without fear of reprisals. Unfortunately, the Founding Fathers clearly did not foresee, among other things, the sheer peer pressure power of being ostracized from modern cocktail parties.

    1. They certainly are chickenshit. Wouldn’t want to upset the majority while adhering to the principles of a constitutional republic.

      1. I am not sure I have a problem with this decision. If the lower court applied the wrong standard, it is not the Supreme Court’s job to apply the standard. The correct course of action was to vacate the decision and send it back with instructions to do it right this time.

        1. You are probably technically correct. I’m no lawyer and haven’t the slightest clue when it comes to procedure. But what everyone is calling for is a ruling on the constitutionality of affirmative action.

          I has a disappoint.

          1. I haven’t read the decision either. But the fact that it was 8-1 and even the liberals agreed that it was a problem, is a good indication that it was probably the right thing to do. What is interesting here is that the Fifth Circuit apparently applied the standard so poorly that even the affirmative action defenders on the Court had to admit they gave UT too much leeway. That is pretty remarkable.

            1. 7-1, John. Kagan recused herself… again. I don’t understand (rhetorically speaking) why they appointed someone who would have to remove herself from so many cases.

              And yet she didn’t even recuse herself on the big one, which might have meant we wouldn’t be stuck with the turd stain that is Obamacare.

              1. Well of course she couldn’t recuse herself on that one. That one was important. And she had to refuse to recuse to combat evil Thomas for not recusing because his wife may have gotten some money from health insurance companies or whatever.


            They did that with the previous case. Hence the screw up by the Fifth, since they didnt apply the proper standard that that case determined.


          That’s actually what they did. Rule that the wrong standard was applied, vacated, and remanded.

          1. Yes. I was saying I think the case was properly decided.

        3. agreed. it appears the court just raised the bar on racial discrimination tests to strict scrutiny. from now on, such tests are assumed unconstitutional. the bar is now on par with testing abortion laws, and laws restricting any explicitly guaranteed constitutional right.

          they just decided to let the university try to meet the new bar in court, and informed the court what the new bar is. and for that slight deference, the court got a 7-1 majority.

          1. “. it appears the court just raised the bar on racial discrimination tests to strict scrutiny. ”

            That’s what I thought too. If they have raised the bar, it is a major ruling and a major move forward.

  2. It doesn’t change the jurisprudence. But it does seem to change the practice a bit. Without getting any deference, I don’t see how UT can possibly win this case. UT is going to have to argue that its admissions officials are so irredeemably racist that they can never be trusted to give minority applicants a fair shake and the only way to ensure minorities are treated fairly is for the decision to be taken out of the hands of the admissions people and determined by a preset percentage. They are are going to have to say their own people are so racist that unless they are told “you must admit so many minorities in every class” there is no possible way minorities will ever be treated fairly. That argument in 2013 is on its face completely ridiculous.


      Wanna bet on whether the distribution of admissions officers reflects the reality of the state? I think they could make that argument, but it would be in favor of the Caucasian girl.

      1. They could never make that argument. And they know it. They are not racist. Minorities get more than a fair shake. The officials just don’t like the results of a fair system and are discriminating against whites and Asians to get the results they want.

    2. Liberals have largely given up the argument that affirmative action is necessary to give blacks a fair shake. The current dogma is that diversity is wonderful, and the only way that all of our students can benefit from its wonderful wonderfulness is through quotas. The Supreme Court just shot that down. The take away for admissions directors is that you need to prove both of that diversity is wonderful ( a “compelling state interest”) and that there is no race neutral way of achieving this wonderful diversity. Good luck with that.

    3. they may have to also argue that any other test not based on race will also not result in diversity. the plaintiffs can roll out a hypothetical socio-economic test, for instance, or a geographic region test, and the university will have to make the case that those schemes cannot work.

  3. Poor UT. Probably has some of the most liberal (in the traditional sense of being open) to all admissions policy, but has been hammered on this issue for the last 15 years.

    1. If there admissions people were not such racist bastards who apparently need to be told to admit black people or else, they wouldn’t have this problem. That seems to be their position. Why they can’t find some non racist admission people is an interesting question.

      1. Face it, universities are right-wing hotbeds of racism, homophobia and wars on womens.


    1. el Racist!

  5. If libertarians and conservatives are disappointed with this decision, it’s most likely because they don’t understand the limited role of the Supreme Court. Their job is, basically, to determine what the law is, not to apply the law to the facts of a specific case. If a lower court misapplied the law, all the Supreme Court can really do is send it back to the lower courts to be done correctly.

    I can understand why people might criticize that, but the Supreme Court isn’t really set up to dive head-first into the trial record in every single case. Their role in our judicial system is designed to be a limited one, more about oversight than acting as a ‘regular’ court.

  6. I want a major ruling on alt-text. Is forgoing it unconstitutional, or merely wrong?

  7. 1. Diversity is garbage. It is not a compelling state interest, if indeed it is a legitimate state interest at all.

    2. Elephant in the room here is anti-Asian discrimination, which admittedly is huger in California than in Texas. Our current academic regime seems to regard the Chinese Exclusion Act as a good start, but not quite racist enough. It’s fucking stunning.

    1. For some races to be favored, others have to be disfavored.

      But I thought in CA they had done away with racial quotas in schools, resulting in a huge influx of Asian students.

      1. Legally, they did, but the University of California system has been shown to cheat that rule and break the law.

  8. When are White and Asian people going to start getting preferential treatment on the pro basketball courts?! How do we expect ALL of “our children” to be able to grow up straight and (figuratively at least) tall, and proud, if they cannot realistically aspire to becoming a pro basketball star?

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  10. The whole question, ultimately, boils down to the absurd logic of racial categorizations.

    At what point is person determined, genetically, to be a member of a “race” Is a person who is 65% European white? what about 49.9999%
    The concept is almost entirely arbitrary.

    Are applicants going to be subjected to racial screenings and examinations by phrenologists?

    Applications for all positions should be based upon individual merit only.

    Homogenous societies don’t have these sorts of issues

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