In what was a bit of an anti-climatic decision last week, the Supreme Court sent the case Fisher v. University of Texas back to the lower court for re-evaluation.
“Specifically, they are going to have to look very closely at whether the use of race is the only reasonable way that the University of Texas could achieve educational diversity,” explained Matthew Nelson, partner at Warner Norcross.
The Supreme Court’s action reaffirms the use of race-conscious admissions programs while at the same time reflecting the Grutter v. Bollinger decision reached in 2003, when the court said the “United States Constitution does not prohibit the (U-M) law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”
Nelson said there are two things notable about the 7-1 vote.
“Number one, public colleges and universities can continue to use race in their admissions policies …,” Nelson said.
“The second thing is, the court sent a strong warning to public colleges and universities that if they want to use race, they can’t just come to court and say, ‘Well, we think this is the best way to do this.’ They actually have to demonstrate that, before they adopted a race-conscious policy, they explored alternatives and reasonably concluded that the only reasonable way they could obtain diversity in their student body was by explicitly considering race.”
The other aspect of the decision that Nelson found most interesting is the obvious compromise made by the justices. Conservative justices Chief Justice John G. Roberts Jr. and justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. were joined by liberal justices Stephen G. Breyer and Sonia Sotomayor in the decision; Justice Ruth Bader Ginsburg provided the only dissent.
“I think that people need to understand that this was a compromise, and the fact that it was a compromise suggests a trend … towards the elimination of affirmative action, but they decided they didn’t have to do it here,” Nelson said.
Before the end of the year, the Supreme Court will hear a second case centering on affirmative action: Michigan’s Schuette v. Coalition to Defend Affirmative Action.
In the fall the justices will review the constitutionality of Michigan’s Proposal 2, a ballot initiative that voters approved in 2006 outlawing the use of affirmative action in the state for employment decisions, contracting decisions and university admissions policies.
“The court will not reach, in that case, whether affirmative action itself is constitutional, or I don’t expect they will. … The issues as presented to the court don’t raise the question of whether affirmative action is generally constitutional but only whether it’s constitutional for the voters of a state to decide that they don’t want their state to use race as a factor in any decision making process,” Nelson explained.