After months of anticipation, the Supreme Court on Monday issued its ruling in the affirmative action case Fisher v. University of Texas at Austin. And that ruling was … not really a ruling at all.
Instead, the high court remanded the case back to the 5th Circuit in a 7-1 decision holding that the appeals court “did not hold the university to the demanding burden of strict scrutiny” required by the previous affirmative action cases Grutter v. Bollinger and Regents of the University of California v. Bakke.
The 5th Circuit found that the university’s race-conscious admissions program was constitutional as long as UT adopted it “in good faith.” But writing for the majority, Justice Anthony Kennedy made it clear that the high court believes the program must meet a higher standard to receive a stamp of approval.
“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 . . . broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element,’” he wrote.
Abigail Fisher sued UT after it denied her admission, arguing that she was rejected because she is white. The university automatically accepts applicants who graduate in the top 10 percent of their high school classes—which Fisher did not—in an effort to ensure racial diversity. Remaining applicants are admitted or rejected based on multiple factors, including race.
In its 2003 decision in Grutter, the court upheld the University of Michigan Law School’s affirmative action program, ruling that the university had a compelling interest in achieving a diverse student body. At that time, the court found that universities could consider race in admissions until the number of minority students reached a “critical mass.”
During oral arguments in Fisher last October, several of the justices, including Chief Justice John Roberts, asked lawyers for both sides to define that “critical mass.” Both sides were reluctant to do so, however, perhaps because by identifying a precise number, they risked establishing a quota system, which the Supreme Court has banned.
Other justices, such as Justice Sonia Sotomayor, argued that black students are still underrepresented at UT-Austin and that studies show that many minority students still feel isolated on campus.
Justice Ruth Bader Ginsburg was the lone dissenter in today’s ruling. Justice Elena Kagan recused herself from the case.
For more InsideCounsel coverage of the case, see: