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N JUNE 24, 2013, THE U.S. SUPREME COURT HANDED DOWN ITS MUCH- ANTICIPATED RULING IN THE AFFIRMATIVE ACTION CASE OF FISHER V. UNIVERSITY OF TEXAS AT AUSTIN. THE 7-1 RULING, WITH JUSTICE ELENA


KAGAN NOT PARTICIPATING, CAME AS A SURPRISE TO MANY


OBSERVERS BECAUSE THE COURT DECLINED TO RULE ON THE CONSTITUTIONALITY OF THE UNIVERSITY OF TEXAS’S AFFIRMATIVE ACTION PLAN, WHICH MANY SUPPORTERS OF EDUCATIONAL DIVERSITY HAD BELIEVED WAS IN SERIOUS JEOPARDY.


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Instead, in an opinion by Justice Anthony Kennedy, who often votes with the Court’s conservative bloc, the high court remanded the case to the U.S. Court of Appeals for the 5th Circuit for a closer examination of whether the court had applied the required “strict scrutiny” standard to the university’s program intended to ensure racial and ethnic diversity. Although supporters of affirmative action are


not all in full agreement about the impact and significance of the Fisher ruling, the consensus seems to be that affirmative action at least sur- vived to live another day and that for proponents of diversity in American higher education, the decision could have been much worse. Te case was filed by Abigail Fisher, a white


woman who had applied to the University of Texas but had been rejected. Fisher claimed that her constitutional right to equal protection of the laws had been violated because under the Texas undergraduate programs designed to ensure diversity of the college’s student body, minority students with lesser credentials than hers had been admitted to college. In response to the Supreme Court’s previous


decisions in affirmative action cases, the university and the state legislature had set up two programs that had the intention of increasing the number


DIVERSITY & THE BAR® SEPTEMBER/OCTOBER 2013


of minority students in the undergraduate college without explicitly invoking a racial quota. One of these programs, known as the “Top Ten


Percent Law,” grants automatic admission to any public state undergraduate college to any student in the top 10 percent of his or her class at a Texas high school that complies with certain standards. Te other program asks applicants to classify themselves among five defined racial categories, and race is granted a plus-value, along with many other fac- tors, in deciding to admit or reject an applicant. Fisher’s claim failed in both the U.S. District


Court and the U.S. Court of Appeals for the 5th Circuit. Te appeals court held that the 2003 Supreme Court ruling in Grutter v. Bollinger, the last time that the Court tackled the issue of affirmative action, required courts to give sub- stantial deference to the university, both on the university’s decision that diversity is a compel- ling state interest and on the specific means that the university adopted to achieve diversity. In other words, it was broadly up to the


university to decide, with little second-guessing by the courts, whether the means that the university chose to bring about diversity were “narrowly tailored,” to use the technical term, to bring about its objectives. Fisher’s lawyers took the case to the Supreme


Court. Although they did not ask the Court to overrule the Grutter holding that the University of Michigan’s law school could consider race as part of its admissions process in order to help ensure diversity, many observers had believed, based on the existence of a conservative majority on the Court and on the nature of the questions at oral argument, that the Court was ready to use the Fisher case as an opportunity to severely rein in affirmative action in the university context. (In Grutter, the Supreme Court had ruled that race could be used as one of many “plus factors” in the university admissions process, while in its companion case, Gratz v. Bollinger, it had found it unconstitutional for a university to automatically award extra points to racial minorities.) But rather than issue a broad ruling that could


have resulted in a death knell for affirmative action programs, the Court chose to send the case back to the 5th Circuit with instructions that the appeals court explicitly apply the “strict scrutiny” standard without deferring to the university’s own views on whether its affirmative action program was constitutionally acceptable. In a 13-page opinion for the 7-1 majority,


Justice Kennedy wrote that it’s up to the courts and MCCA.COM


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