UT PRESIDENT BILL POWERS DISCUSSING THE FISHER CASE ON CAPITOL HILL. Affirmative action support-
ers who spoke with Diversity & the Bar on the issue agreed that the ruling, while not without pitfalls, can generally be viewed as favorable to the cause of diversity, or at least far better than could be expected given the Supreme Court’s composition. “Te Court understood that
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strict scrutiny is a demanding stan- dard,” says David DeBruin, a part- ner in Jenner & Block who helped write an amicus curiae brief in the case on behalf of 57 of the Fortune 100 companies in favor of affirma- tive action. “It’s not clear where the line will ultimately be drawn, but the most important thing is that the Court did not overrule Grutter, so the broad principles that diver- sity is a compelling interest and that a narrowly tailored program is likely to be upheld by the courts are still the law. Universities are now on notice as to what is required for them to prove in order for a program to be upheld.” Also very important, says
DeBruin, is that Justice Kennedy, who did not join the Grutter majority 10 years ago, “is now among those who recognize that diversity is a compelling interest.” Allyson N. Ho, a partner in
Morgan, Lewis & Bockius who participated in an amicus brief on behalf of a group of religious denominations and campus minis- tries in the case, agrees. “In what was expected to be a highly divisive case, the most
DIVERSITY & THE BAR® SEPTEMBER/OCTOBER 2013
surprising thing to me is that there was a supermajority that confirmed what was said in Grutter about diversity and also affirmed that reviewing courts need to review diversity programs carefully,” says Ho. “As far as affirmative action is concerned, no news is good news.” Tomas Goldstein, a partner
in D.C.’s Goldstein & Russell who participated in an amicus curiae brief for the Association of American Law Schools, says, “Affirmative action dodged a bullet here. Although it was a step backwards, it was far from the complete retreat that advocates of diversity had feared. Te opinion is a pause in the Court’s affirmative action jurisprudence. It puts off a broad ruling for another day.” Goldstein adds, however, that
“until the composition of the Court changes, affirmative action is on the clock, and everyone knows that.” He says it may be a mere three to five years before the Court takes up another affirmative action case that has the possibility of leading to the overruling of the Grutter case. Until then, says Goldstein, “if
administrators of law schools or universities are able first to build a record of how you can’t obtain diversity without some explicit consideration of race, and secondly to articulate as holistic an inquiry as is humanly possible about the steps that they are taking and why this is not a numerical quota, they should be all right under this standard.” D&B
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Photo by Paul Fetters
AFFIRMATIVE ACTION DODGED A BULLET HERE. —THOMAS GOLDSTEIN
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