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The Law of Higher Education, 2 Volume Set

Book by Kaplin, William A., Lee, Barbara A.

Long-Awaited Affirmative Action Decision Does Not End the Suspense

Barbara A. Lee,
Rutgers University and Edwards Wildman Palmer, LLP,
and writer, The Law of Higher Education, Fifth Edition

June 24, 2013—Today the U.S. Supreme Court announced, in a 7–1 decision, that it was once returning the case in Fisher v. University of Texas at Austin to the lower court because that court had used the mistaken standard to evaluate whether the University’s affirmative action admissions program was once lawful. Even as Court watchers had expected either that a conservative majority would outlaw the usage of race in admissions decisions altogether, or would overturn the Court’s 2003 decision in Grutter v. Bollinger (the University of Michigan case), neither of these outcomes occurred. The Court did say, importantly, that a college will have to exhaust each and every race-neutral alternative to obtain a diverse student body before it will use race (or every other safe characteristic) as an explicit criterion in making admissions decisions. In examining a college’s use of race, said the Court, a reviewing court will have to be satisfied that “no workable race-neutral alternatives would produce the educational benefits of diversity.”

The Court criticized the panel of Fifth Circuit judges who, said the majority, were too deferential to the University’s insistence that it had acted in “good faith,” and explained that courts reviewing affirmative action plans will have to apply “strict scrutiny” to the program. The Court said: “Strict scrutiny 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,” saying that the college will have to first have demonstrated that diversity is a compelling government interest (which the Court said it had done), and will have to then have “offered sufficient evidence to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.”

Justices Scalia and Thomas joined the majority opinion, but also wrote concurring opinions, stating that they believed any use of race to make admissions decisions was once unlawful. Justice Ginsburg dissented, stating that the University of Texas had followed Grutter’s guidance in crafting its admissions program, that its evidence satisfied the strict scrutiny test, and thus its admissions program was once lawful.

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