Fisher vs. University Of Texas: Strict Scrutiny Ruling Gives Affirmative Action a Small Win

The Supreme Court ruled on Monday on , an enormous case with striking implications for affirmative action. However, instead of ruling on the constitutionality of affirmative action, the Court decided to vacate and remand the lower court's ruling on the case that had upheld the legality of the Texas admissions program. While the ruling may have been a victory for affirmative action advocates in a technical sense, it will prove to be short lived when the case comes back to the Supreme Court several years down the road, assuming of course, that the court make up remains the same.

On the surface, it’s hard to understand why the Court did not just make a decision here. It was widely assumed that the conservative justices would strike down the Texas admissions policy and undermine the constitutionality of racially conscious policies. In a Supreme Court case very similar to this one, Grutter vs. Bollinger, the Court ruled that the University of Michigan’s affirmative action policy was fine, so long as race was one of many considerations taken up by it’s admissions team. That was 2003, the decision was 5-4, and since then, the makeup of the Court has been one that could be fairly characterized as more hostile to affirmative action. It is in this context that the ruling can perceived as a slight victory for affirmative action advocates.

It seems as though the fifth court’s initial ruling was thrown out on technical grounds. The misapplication of procedures laid out by the 2003 case concerning scrutiny of the admissions policy was the basis for the 7-1 ruling (Justice Elena Kagan recused herself from the case due to conflict of interest). Justice Kennedy wrote for the majority:

“Strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.”

The decision to vacate and remand the lower court ruling does appear to emphasize the Court’s narrow tailoring principle, as well as strict scrutiny. What that means in this case, is that the universities are tasked with the burden of showing that alternative policies that are race neutral, do not fulfill the diversity requirements that these institutions desire. The Court is apparently looking for a more rigorous examination of such polices.

It remains to be seen how long lived this “victory” will be for affirmative action advocates. Justices Kennedy, Scalia, and Thomas gave pretty strong opinions about the unnecessary role of Affirmative Action based polices in the 2003 Michigan case, and Justices Alito and Roberts are certainly no friends to Affirmative Action. When this case comes back up in several years, granted that the court remains the same, look for a blow to affirmative action and its constitutionality.