Avoiding any major ruling on the hotbutton issue of affirmative action
in school admissions, the Supreme Court on Monday sent the case Fisher
v. University of Texas at Austin back to the Fifth Circuit Court of
Appeals. The narrow ruling essentially tees up the issue for the court
to reconsider next year, when it will review another affirmative
action case.
In a seven to one opinion, the court argued the lower court used the
wrong standards to evaluate the Texas college's admissions policies.
Justice Anthony Kennedy wrote for the majority that the Fifth Circuit
should not have given UT Austin as much deference on the matter of
whether its limited approach to racial considerations met the standard
set by the Supreme Court in 2003. That year, in Grutter v. Bollinger,
the court rejected the use of racial quotas but said that schools
could consider race as part of a "holistic" review of a student's
application.
That precedent, Kennedy wrote, "does not permit a court to accept a
school's assertion that its admissions process uses race in a
permissible way without closely examining how the process works in
practice, yet that is what the District Court and Fifth Circuit did
here."
Justice Ruth Bader Ginsburg dissented, while Justice Elena Kagan
recused herself from the case.
Fisher v. University of Texas at Austin was brought to the court by
Abigail Fisher, a white woman who applied to UT Austin as a high
school senior in 2008. She filed suit against the school after she was
rejected, arguing the university's consideration of race didn't meet
standards previously set by the Supreme Court.
While the University of Texas defended its consideration of race, most
students are accepted into UT Austin through the "Top 10 percent" law
-- a program that doesn't consider race. The "Top 10" program grants
automatic admission to the top students in every Texas high school.
Fisher did not qualify for the program. In 2008, just 216 accepted
students accepted outside of the "Top 10" program were black or
Hispanic.
Fisher v. University of Texas at Austin, argued before the court in
October, was considered a major opportunity for the court to rule on
affirmative action. While Monday's ruling doesn't set any new
precedents, the court will take up another affirmative action case as
soon as next year.
The Supreme Court in its next term will consider whether the state of
Michigan violated the Equal Protection Clause by amending its state
Constitution to prohibit affirmative action. The case, referred to as
Schuette v. Coalition to Defend Affirmative Action, reviews a 2006
Michigan ballot initiative that bans the consideration of race or sex
in public education, government contracting and public employment.
The Sixth Circuit Court of Appeals ruled that the Michigan initiative
-- because it came in the form of a constitutional amendment --
"reordered the political process" in a way that put special burdens on
racial minorities.
"Rather than undoing an act of popularly elected officials by simply
repealing the policies they created, Michigan voters repealed the
admissions policies that university officials created and took the
additional step of permanently removing the officials' power to
reinstate them," the appeals court wrote. "Had those favoring
elimination of all race-conscious admissions policies successfully
lobbied the universities' admissions units, just as racial minorities
did to have these policies adopted in the first place, there would be
no equal protection concern."
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