The US Supreme Court building in Washington. (AP Photo/J. Scott Applewhite)
Today the Supreme Court decided that it won’t decide the future of affirmative action. In the case of Fisher v. University of Texas, where the plaintiff, Abigail Fisher, a white woman, claimed to have been denied admission to the University of Texas at Austin because she is white. She believed that because of UT’s consideration of race in their admissions process, a practice aimed at increasing diversity, she was not able to get into her school of choice and that violated equal protection rights. The university says Fisher wouldn’t have gotten in even if race wasn’t one of the factors used to determine admission, because her grades simply weren’t good enough.
Rather than take this opportunity to decide the ultimate fate of affirmative action, the Supreme Court sent this case back to the lower US Court of Appeals for the Fifth Circuit. In a 7-1 decision (Justice Kagan recused herself), with Justice Kennedy writing the opinion, they ruled: “Under Grutter [v. Bollinger], strict scrutiny must be applied to any admissions program using racial categories or classifications. A court may give some deference to a university’s ‘judgment that such diversity is essential to its educational mission,’ 539 U. S., at 328, provided that diversity is not defined as mere racial balancing and there is a reasoned, principled explanation for the academic decision. On this point, the courts below were correct in finding that Grutter calls for deference to the University’s experience and expertise about its educational mission. However, once the University has established that its goal of diversity is consistent with strict scrutiny, the University must prove that the means it chose to attain that diversity are narrowly tailored to its goal. On this point, the University receives no deference.”
In effect, this means affirmative action, for the time being, is still constitutional. However, its future is unclear. The court will take up another case involving affirmative action in March of next year.
Meanwhile, we are left to debate whether affirmative action is still necessary. You may believe, as Justice Thomas believes, that the case for affirmative action is comparable to that in favor of slavery. Or you may be less hyperbolic and simply believe, like Abigail Fisher, that any consideration of race in any way, shape or form is discriminatory and therefore has no place in our society. Or perhaps you see affirmative action as a way to promote diversity and believe diversity serves the common good.