In a win for affirmative action advocates, the Supreme Court on Thursday rejected a challenge to a program at the University of Texas that considers race as a limited factor in admissions decisions. Dan Urman, assistant teaching professor in the Doctor of Law and Policy program and director of the minor in Law and Public Policy, examines the court’s decision and what it means for affirmative action. Urman, who has worked at the Senate Judiciary Committee and was a Marshall Scholar at the University of Oxford, teaches a course titled “Understanding the Modern Supreme Court.”
The high court’s decision in Fisher v. University of Texas rejected a challenge to a race-conscious admissions program at the university. What happened in this case? What did the dissents say?
Justice Anthony Kennedy wrote the majority opinion. Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor joined him, making it a 4-3 vote. The majority held that the University of Texas’ undergraduate admissions plan did not violate the Equal Protection Clause of the 14th Amendment to the United States Constitution. According to Kennedy, Texas’ plan withstood “strict scrutiny,” meaning that the use of race as an admissions factor was carefully designed to achieve the permissible goal of student-body diversity. According to the opinion, schools must still demonstrate that race-neutral plans—such as socioeconomic or geographic factors—do not suffice. However, the court acknowledged that judges should defer to academic institutions’ own judgement about the importance of campus diversity.
The case included two dissents. First, Justice Clarence Thomas wrote a short dissent suggesting that as a categorical matter, universities may never use race as a factor in admissions. Thomas noted that he would overrule Grutter v. Bollinger, the 2003 case that permitted universities to take race into account in admissions decisions.
Second, Justice Samuel Alito authored a 50-page dissent, which was roughly twice as long as the majority opinion. Alito, quite simply, believed that the UT plan failed to withstand “strict scrutiny.” In particularly pointed language, Alito mentioned that the UT plan discriminates against Asian students, and he called the plan “affirmative action gone wild.” Alito read his dissent from the bench, which is fairly uncommon and usually means the justice has particularly strong feelings about the case.
What are the larger implications of this decision? And, specifically, what does it mean for affirmative action in higher education?
This case is unique in several ways. First, this was the second time the court heard Fisher’s case. In the first round in 2013, known as Fisher I, the court issued a 7-1 compromise decision and sent the case back to the U.S. Court of Appeals for the 5th Circuit (Texas, Louisiana, Mississippi) to apply “strict scrutiny” to the Texas plan. The 5th Circuit did so and ruled that Texas had satisfied all legal requirements.
Second, the case is unique because only seven justices participated in the opinion. The court has had only eight active members since Justice Scalia’s death in February, and Senate Republicans have refused to hold a hearing for President Obama’s nominee, Merrick Garland. Additionally, Justice Elena Kagan recused herself in both Fisher I and Fisher II because she worked on the case during her time as U.S. solicitor general. Her recusal meant that a 4-4 tie was impossible.
Third, this case involved a particular admissions program at the University of Texas known as the “Top Ten Percent” plan, not affirmative action overall. This plan guaranteed admission to public universities in the state of Texas to students who graduated from a Texas high school near the top of their class. When the Supreme Court permitted holistic reviews of race in higher education in Grutter v. Bollinger, Texas modified its “Top Ten Percent” plan to fill 75 percent, instead of 100 percent, of its freshman class. The plaintiff, Abigail Fisher, did not graduate in the top 10 percent of her class, so she only challenged the smaller portion of the state admissions program. Justice Kennedy’s majority opinion mentioned, somewhat ironically, that Fisher might have had a better chance at admission if Texas had a more race-conscious plan than its current “Top Ten Percent” plan.
This decision means that affirmative action will continue in public and private universities across the nation (the federal government reviews private universities through Title VI of the 1964 Civil Rights Act). College admissions officers must be breathing a sigh of relief, after Fisher I and Fisher II produced several years of confusion. This case did not represent a frontal attack on affirmative action itself, but rather the specific program in place in Texas. Two pending lawsuits at Harvard and the University of North Carolina do just that. Justice Kagan would not need to recuse herself from those cases, and she has supported affirmative action in the past, so there are five current justices supporting affirmative action in higher education. If the Senate confirms Merrick Garland between the November election and inauguration, that would add a sixth vote supporting affirmative action and potentially enshrining it for years to come. I predict that Hillary Clinton will win the presidential election and that the Senate will confirm Garland before the inauguration, because it would prefer Garland to a younger and more liberal Clinton-nominated justice.
As you mentioned, Justice Scalia’s seat remains vacant and Justice Kagan recused herself for prior work on the case, leaving only seven justices to participate in the decision. What impact did Scalia’s death play in the specific outcome of this case?
If Justice Scalia were still alive, I am certain that he would have voted along with Justices Alito, Roberts, and Thomas, and Scalia might have authored a dissent, since he did so in other major affirmative action cases. That would have led to a 4-4 ruling, leaving the decision below in place. The 5th Circuit decision had rejected Fisher’s appeal, so for Fisher, the result would have been identical. However, a 4-4 tie would confine the result to all federal courts in Texas, Louisiana, and Mississippi. Therefore, interestingly, with Kagan’s recusal and Scalia’s death, the court avoided a 4-4 tie. This means that the opinion applies to all courts across the country.