(AP Photo/Evan Vucci)
In a trio of decisions on race discrimination, the Supreme Court today stepped back from the precipice of invalidating affirmative action in university admissions, but made it harder for victims of discrimination and harassment to sue their employers. In Fisher v. University of Texas, one of the most important and closely watched cases of the term, the Court reached a nearly unanimous compromise decision that essentially leaves intact the constitutional status quo, which permits affirmative action for diversity purposes. But the decision may make it easier for disappointed white students to challenge affirmative action plans and therefore invites further litigation.
In the two employment discrimination cases, the Court upended longstanding federal agency interpretations of Title VII, the statute prohibiting discrimination in employment, and issued a pair of 5-4 decisions that will make it more difficult for victims of employment discrimination to seek redress. The Title VII decisions, however, are subject to being “corrected” by Congress, as Justice Ruth Bader Ginsburg pointed out in reading her dissents in both cases from the bench.
The vote in Fisher v. University of Texas was, surprisingly, 7-1, with only Justice Ginsburg dissenting, and doing so in only four pages. (Justice Elena Kagan was recused.) The Court achieved that unanimity by forging a narrow decision that did not change existing law and did not invalidate Texas’ affirmative action plan. The Court merely held that the lower court had applied an insufficiently rigorous standard in reviewing Texas’ plan. It remanded the case back to the lower courts so that they could apply the more stringent standard required. But it seems quite possible that the University of Texas will be able to satisfy the standard the Court set forth, thereby saving its program. The bottom line is that affirmative action has survived, for now.
When the Supreme Court agreed to hear the Fisher case, many feared that the Court might be ready to end affirmative action. The Court had narrowly upheld a University of Michigan Law School affirmative action plan in 2003 in Grutter v. Bollinger, but Justice Sandra Day O’Connor had cast the deciding vote in that case. She has since been replaced by Justice Samuel Alito, no fan of affirmative action. It appeared that there might well be five votes to overturn Grutter, which had established that while affirmative action triggers “strict scrutiny,” it may satisfy such scrutiny where it is narrowly tailored to further a compelling interest in achieving the educational benefits of diversity. Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy had dissented in Grutter, and Chief Justice John Roberts and Justice Alito seemed likely to agree with these three.
The Texas plan, however, was quite modest—race was only “a factor of a factor of a factor” in a holistic consideration of all aspects of an individual’s application. It set up no racial quotas and made the consideration of race a marginal factor at best. But the university adopted the program after the state legislature had achieved a degree of racial diversity through a purportedly race-neutral “Ten Percent Plan,” under which all Texas students in the top 10 percent of their graduating high school classes would be guaranteed admission to the University of Texas. (This plan was only purportedly race-neutral, as Justice Ginsburg pointed out in dissent, because it was adopted with the knowledge and intent that given racial segregation, it would be an indirect way to achieve some measure of diversity). The question in Fisher was whether the university’s consideration of race to achieve diversity beyond that provided by the Ten Percent Plan, was warranted.