The Supreme Court's Non-Decision on Affirmative Action
This from the
Brookings Institute:
It is hardly breaking news that the Supreme Court is deeply split
between conservative and liberal blocs. This split has led to frequent
5-4 opinions, often with Justice Anthony Kennedy providing the swing
vote. Occasionally, the split produces opinions that temporize,
addressing a very narrow issue or avoiding the central question
altogether. The Court’s much-awaited decision in the affirmative action
case of Fisher v. University of Texas at Austin, announced on Monday, June 24, is a classic example of avoiding the central question.
Oral arguments in this case made clear that the Court remains as
divided as it was in 2003 when it last heard two affirmative action
cases—approving affirmative action in one but rejecting it in the other.
Although still divided, the vote on Monday was not the 5-4 split to
which followers of the Supreme Court have become inured. Instead, seven
justices voted not to decide anything other than that the Circuit Court
of Appeals should scrutinize the Texas admission standards more closely
than it did. The one dissenting justice, Ruth Bader Ginsburg said, in
effect, that the Circuit Court had done just what the Supreme Court had
said it should do when it last ruled on affirmative action.
In three past landmark cases, the Supreme Court declared that racial
diversity is a legitimate and constitutional objective of institutions
of higher learning. Outright quotas, it said, were impermissible.
Rather, measures to promote diversity must be narrowly targeted to that
objective. Such measures must be subject to ‘strict scrutiny,’ which in
the case of universities means that the burden of proof rests on the
university to show what it is doing is as narrowly crafted as possible
to achieve ‘diversity.’
But there was and remains a big problem. No one has ever defined just
what diversity for a state university means—whether it is defined
relative to the state’s overall population, the graduating high-school
population, or what; whether it applies at the level of the university,
particular programs within the university, or the individual classroom.
It is hard to believe, for example, that a single definition of
‘diversity’ for Hispanics and African Americans could or should apply
at, say, the University of South Dakota and the University of Texas.
Faced with such a protean challenge, it is hard to imagine what
objective standard a national court system could evolve to test the
constitutionality of the admission policies.
Enter the Texas admission program. The Texas admission program
contains two elements. First, the top 10 percent of each graduating
Texas high-school class is eligible for admission to the University of
Texas. The top-10 percent policy results in admission of more Hispanics,
African-Americans, and Native Americans and fewer whites and
Asian-Americans than would be the case if admissions depended only on
test scores because of widespread residential segregation and the fact
that Hispanics, African-Americans, and Native Americans score lower on
standardized tests than do whites and Asian-Americans. The second
admission screen is a ‘personal achievement index’ based on numerous
factors, one of which is race, although it is not assigned a uniform
numerical value.
The plaintiff, Abigail Fisher, was not in the top 10 percent of her
graduating class and was not admitted on the basis of the personal
achievement index. She sued, alleging that she would have been admitted
but for the use of race in the personal achievement index. The federal
district court, which initially heard the case, granted summary judgment
in favor of the University, finding that its admission procedures fell
within the broad and rather diffuse guidelines laid down in previous
Supreme Court decisions that granted universities ‘substantial
deference’ in deciding what admissions policies best advanced its
educational objectives. A three-judge panel of the Fifth Circuit Court
of Appeals concurred.
Ms. Fisher carried her appeal to the Supreme Court. Her attorneys did
not ask the Court to overturn its previous decisions authorizing
affirmative action. Instead, she alleged that the procedures were not
narrowly targeted. The fact that the Supreme Court agreed to hear the
case led many to believe that it was prepared to end affirmative action
in university admissions.
Questioning during oral arguments heightened this expectation. Three
justices were openly hostile to the arguments advanced by the attorneys
for the University of Texas. Justice Thomas, who did not break his
customary silence during oral arguments, was on record in previous
dissents solidly opposed to affirmative action. Justice Kennedy who
opposed affirmative action in the two most recent previous cases, one
rejecting and one affirming different affirmative action plans,
displayed discomfort during oral arguments with the position advanced on
behalf of the Texas plan and was expected to provide the swing vote.
The fact that Justice Kennedy ended up writing the opinion of the
court suggests that he may have been critical to the ultimate decision.
But the vote was not 5 to 4. Seven justices agreed that the Circuit
Court had failed in its duty to apply ‘strict scrutiny’ to the Texas
plan in order to determine whether it was ‘narrowly crafted’ to achieve
diversity. Two of the seven, Justices Scalia and Thomas, wrote separate
opinions that made clear that they would have preferred to overturn
affirmative action—which Justice Thomas labels ‘racial
discrimination’—had that issue been before them. One justice, Elena
Kagan, recused herself.
Justice Ruth Bader Ginsburg, in a biting dissent, argued that the
Circuit Court had done just what the Supreme Court had said lower courts
should do—sustaining an admission policy that she found to be narrowly
crafted in service of the constitutionally legitimate objective of
diversity.
The right way to read this decision in my view is that two Justices
were ready to overturn affirmative action today, one to sustain it. The
other five were either unwilling to sign what would be an explosively
controversial rejection of affirmative action or were willing to endorse
a temporizing compromise that put off the issue for another day. The
obvious discomfort with either sustaining or completely ending
affirmative action that has marked Justice Kennedy’s position and that
were evident during oral arguments in this case may have led to this
compromise.
The language of Monday’s decision adjures the lower courts to view
the Texas admission policies and all others with a skeptical eye. But it
provided no guidance, apart from that in previous cases, on what
exactly that means. It remains unclear how the Fifth Circuit Court will
handle the issue. The opinion that the Supreme Court reviewed was the
product of three judges. Seven of sixteen judges in the Fifth Circuit
had supported a rehearing before the entire Fifth Circuit bench.
Whether the case is reviewed by the three judges who handed down the
original decision or by the entire Fifth Circuit could influence its
outcome. It is hard to imagine, however, that the current Justices of
the Supreme Court will manage to escape revisiting the case of Abigail
Fisher or that, based on today’s non-decision, they will overturn
whatever decision the Fifth Circuit eventually reaches.
1 comment:
So basically they are saying we probably shouldn't be doing this anymore but folks still can if they have a really good reason (TBD).
Sounds a lot like the same double talk that justified seperate but equal a century ago which civil rights legislation was combatting. Even then the courts were expecting equality in theory though it certainly wasn't in practice. I thought that was what this was all suppose to be about - equal access to all.
In this day and age I am not sure why we condone this sort of racist policy any more than the ones it combated pre 1960's. Fact is population projections indicated that whites will soon no longer represent a majority. Equally, the argument that it is to compensate for past injustices doesn't fly anymore than giving women today 1.5 voting power due to non voting status prior to 1919 or continuing our practice of providing Native American's their own independent national status identity within the U.S. because of expansion abuses of the country over a century ago.
We live in today folks, can't change history or past failures by trying to compensate folks when those conditions of the past no longer exist.
Seems particularly telling that so many of our citizens and media are more fixated on wheter Paula Deen used the "N word" twenty years ago than how our Supreme Court voted on this issue.
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