In Narrow Decision, Supreme Court Sets High Bar For Race-Based Affirmative Action

The narrow ruling will make it tougher for schools to use race as a criteria in admissions decisions.

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WASHINGTON, DC - JUNE 24: People wait to enter the U.S. Supreme Court building, June 24, 2013 in Washington DC.

The Supreme Court passed up a chance to issue a sweeping ruling on affirmative action Monday, sending a controversial case back to a lower court for further review. But the Court’s ruling has important ramifications for the future of the controversial policy, at once upholding the legal underpinnings for affirmative action while also tightening the standards schools must meet when using race as a criteria for admissions decisions.

The narrow ruling in Fisher v. University of Texas at Austin, in which a white woman claimed she had been denied admission to the state’s flagship university despite superior qualifications, will make it tougher for schools to prove that considering race is necessary for the purpose of creating a diverse student body.

In their 7-1 decision, the justices said that lower courts did not hold the University of Texas to sufficiently strict scrutiny in ruling that the school was within its rights to deny admission to Abigail Fisher, who sued the college in 2008. Fisher argued that the school’s use of race in its admissions criteria resulted in the rejection of her application. The school said despite its use of affirmative action to promote diversity in its student body, race was not a factor in Fisher’s rejection.

Two courts sided with the university, including the Court of Appeals for the Fifth Circuit. But the Supreme Court vacated the Fifth Circuit’s decision, arguing that it failed to heed precedent established by two prior cases, Regents of Univ. of Cal. v. Bakke and Grutter v. Bollinger. Those cases, the justices argued, require schools to justify using race — as opposed to other alternatives — as a means to achieving diversity.

“The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the education benefits of diversity,” Justice Anthony Kennedy wrote in a carefully tailored majority opinion. Justice Ruth Bader Ginsburg was the lone dissenter. Justice Elena Kagan, who was involved with the case in her former capacity as U.S. Solicitor General, recused herself from the matter.

The justices ruled that lower courts improperly relied on the school’s own determination that it could only achieve diversity by considering race in its admissions. They held that the lower courts failed to apply a test of “strict scrutiny,” a higher level of judicial review that puts the burden of proof on the school. The justices ordered the Fifth Circuit to reconsider the case with the tougher standard.

“[S]trict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice,” the ruling states, adding that relying on the schools “good faith” does not meet the test of strict scrutiny. “Strict scrutiny must not be strict in theory but feeble in fact,” Kennedy wrote.

“The most direct impact” of the ruling, says George Washington University law professor Jonathan Turley, “is it makes it more difficult for schools to use race as a factor” in admissions decisions. At the same time, Turley says, it was a “setback” for legal scholars who sought to eliminate the use of race in affirmative action. “The court seems to be unified among preserving the right to consider race,” he says.

The narrow ruling was a surprise to observers who expected the justices to “outlaw or seriously curtail all uses of race by government actors,” wrote Adam Winkler, a constitutional law professor at UCLA. “ Instead, the Court simply overturned a lower court decision because that court didn’t analyze the law properly. But the Court did not say that UT’s policy was unconstitutional; indeed, on remand, it’s possible the courts will uphold UT’s policy.”

Despite declining to issue a sweeping ruling on the charged topic, the ruling has ramifications for the future of affirmative action. Kennedy’s opinion reinforces high bar for future judicial review of affirmative action policies. One alternative method of affirmative action, popular among both factions of liberals and conservatives, is to jettison race-based criteria in favor of examining the socioeconomic status of applicants. “There are many people who believe that class diversity is far more important than racial diversity in a classroom,” Turley says.

Carrie Severino, chief counsel to the conservative Judicial Crisis Network and a former law clerk for Justice Clarence Thomas, said the Court appears “one step closer to agreeing with the countless parents who simply want their children to be evaluated on the basis of their character and hard work.”

In a concurring opinion, Thomas likened affirmative action to segregation and argued the court should have gone further to restrict its use. In her dissent, Justice Ginsburg argued that the lower court had sufficiently met the test for judicial review, and said the appellate court’s decision should be upheld.

The full opinion is below: