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March 28, 2015

Supreme Court Punts in Affirmative Action Case

The Supreme Court ruled in Fisher v. University of Texas at Austin that the Fifth Circuit Court of Appeals did not properly apply precedent in determining whether the University of Texas’s affirmative action plan is constitutional, sending it back to the lower court for additional review. The Court did not revisit its affirmative action precedents.

The ruling was 7-1, with Justice Anthony Kennedy writing for the majority and Justice Ruth Bader Ginsburg the lone dissenter. Justice Elena Kagan recused herself from the case.

SCOTUSblog explains the decision: “In an opinion that required only thirteen pages, the Court explained that a university’s use of race must meet a test known as “strict scrutiny.”  Under this test, a university’s use of affirmative action will be constitutional only if it is “narrowly tailored.”  The Court in Fisher took pains to make clear exactly what this means:  courts can no longer simply rubber-stamp a university’s determination that it needs to use affirmative action to have a diverse student body. ”

“Instead, courts themselves will need to confirm that the use of race is “necessary” – that is, that there is no other realistic alternative that does not use race that would also create a diverse student body.  Because the lower court had not done so, the Court sent the case back for it to determine whether the university could make this showing.”

Susan Sturm argues that the affirmative action debate distracts from much more important issues: “Allowing questions like those raised by Fisher to frame the public dialogue closes down crucial conversations about one of the most pressing issues of our time. We shouldn’t be too preoccupied with debating what admissions officers are legally allowed to do with race. Instead, we should be talking about how institutions of higher education can identify, equip, admit, and eventually graduate all students with the potential to succeed, rather than simply rewarding those who have been prepped for college from birth.”

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