Supreme Court Orders Lower Court to Reconsider Affirmative Action Case
By THE NEW YORK TIMES
Published: June 24, 2013 Comment
WASHINGTON — The Supreme Court ruled Monday that lower courts did not apply a sufficiently tough level of scrutiny to the University of Texas’ use of race in admissions decisions, sending the case back to one of those lower courts to be reconsidered.
Luke Sharrett for The New York Times
Abigail Fisher, who was denied admission to the University of Texas at Austin, said her race was held against her.
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The decision will most likely have few immediate implications for affirmative action programs around the country, including in Texas. But it may represent the start of a new wave of challenges to the use of race in admissions decisions.
In a 7-to-1 decision, with Justice Anthony M. Kennedy writing the majority opinion, the court ruled that the lower court did not use a legal standard known as strict scrutiny to assess the university’s program.
“Strict scrutiny,” the opinion read, “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.”
Justice Ruth Bader Ginsburg was the lone dissenter in the case, Fisher v. the University of Texas.
The case arose from a lawsuit filed by a white woman, Abigail Fisher, who said the university had denied her admission based on her race.
The admissions system Ms. Fisher challenged is idiosyncratic. Three-quarters of applicants from Texas are admitted under a program that guarantees admission to the top students in every high school in the state. (Almost everyone calls this the Top 10 program, though the percentage cutoff can vary. Ms. Fisher just missed the cutoff.)
The remaining Texas students and those from elsewhere are considered under standards that take account of academic achievement and other factors, including race and ethnicity.
The Top 10 program has produced significant racial and ethnic diversity. In recent years, about 25 percent of freshmen who enrolled under the program were Hispanic, and 6 percent were black. Thirty-eight percent of Texans are Hispanic, and 12 percent are black.
Ms. Fisher argued that Texas could not have it both ways. Having put in place a race-neutral program to increase minority admissions, she said, Texas may not supplement it with a race-conscious one.
Texas officials said that the additional effort was needed to make sure that individual classrooms contained a “critical mass” of minority students.
The court had two earlier major encounters with the issue, University of California v. Bakke, in 1978, and Grutter v. Bollinger, in 2003.
The pursuit of educational diversity, a five-justice majority said in the Grutter case, permits admissions personnel at public universities to do what the Constitution ordinarily forbids government officials to do — to sort people by race.
The opinion, by Justice Sandra Day O’Connor, went on to say that the day would come when “the use of racial preferences will no longer be necessary” in admissions decisions to foster educational diversity. “We expect that 25 years from now,” she added, “the use of racial preferences will no longer be necessary.”
Justice Elena Kagan disqualified herself from the new case, presumably because she had worked on it as solicitor general.
I was surprised by the decision. It was much narrower than I expected. I was expecting a 5-4 decision overturning affirmative action. Instead, all they did by 7-1 vote was reaffirm the decision in Grutter v. Bollinger, 539 U. S. 306 that a university must use the strict scrutiny standard. The appeals court failed to apply the standard required by the Grutter precedent, so they were reversed. Correct decision.
ReplyDeleteObviously, this case does not count for the Roberts project, but they have more affirmative action cases coming next year.
--David
There were two Title VII discrimination cases also today. They split 5-4 with Roberts voting with the conservatives. All the liberals dissented. The UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL CENTER v. NASSAR case was a terrible decision. Basically, the Court ruled that if you file a discrimination case and the company retaliates by firing you or withdrawing a job offer (as in this case), the burden of proof is on YOU to prove that you would have gotten the job if you hadn't made the discrimination protest! That is impossible to prove, so the Supreme Court opinion today made the retaliation provision of Title VII virtually unenforceable. Ginsburg's dissent was a tour de force. All the federal courts were reversed, and Mr. Nassar lost a multi-million dollar settlement with the Medical Center which he richly deserved.
ReplyDelete--David
Are you going to allow this one to count for the Roberts project? Does Obama have any interest in getting his appointments confirmed?
ReplyDeletehttp://www.cnn.com/2013/06/24/us/obama-recess-appointments/?iref=obnetwork
--David
As predicted, the Supreme Court just gutted the Voting Rights Act in the SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL. case. Let's see, this is Albama vs. Eric Holder to allow Republicans in South Carolina, Texas, and any other state legislature controlled by Republicans to pass more voter suppression laws to make it difficult or impossible for blacks to vote. Um, I wonder whether Barack Obama had any interest in this case? You have got to be kidding me, right?
ReplyDeleteNot only did Roberts vote with the other conservatives on this, he wrote the opinion of the Court. He knows damn-well that Republicans will not support redrafting Section 4, and so now they can go back to Jim Crow days until the Democrats get control of the House of Representatives and 60+ votes in the Senate.
I now believe that the only reason they didn't kill affirmative action yesterday, is that Roberts didn't want to take the political heat for handing down two landmark anti-civil rights decisions on the same day. They will put off affirmative action until the next term.
The Roberts Court will go down as one of the most judicial activist courts in history. That's quite an achievement for a guy you think is, for some inexplicable reason, great friends with Barack Obama and says that all he does on the court is "call balls and strikes."
--David
You can read parts of the Ginsburg dissent here…
ReplyDeletehttp://www.policymic.com/articles/51041/justice-ginsburg-dissent-in-shelby-v-holder-is-a-big-middle-finger-to-the-conservative-majority
She read it from the bench, so Roberts had to hear it. You can also download the whole thing from this link and read it. I did. Among other things, she notes that Roberts gave no credit to Congress for their 15,000 pages of documentation when reauthorizing the VRA in 2006. The vote in Congress with 98-0 in the Senate and 390-33 in the House. As far as Roberts claim these districts no longer need preclearance, the data show that their voter suppression acts were blocked MORE times in 1982-2004 than 1965-1982 (626 to 490). There were also 800 cases where the districts voluntarily altered or withdrew their plans. Heck, in the case at hand, Shelby county was in clear violation.
This is a dark day for voter rights in this country, and we will see a wave of voter suppression efforts in the covered districts. There is nothing left to block them exception Section 2 lawsuits, which are slow, expensive, and amount to slamming the barn door shut after the horse (election) is gone.
--David
The Supreme Court just ruled on the UNITED STATES v. WINDSOR, EXECUTOR OF THE ESTATE OF SPYER, ET AL. case. It was a 5-4 decision to declare DOMA unconstitutional. Kennedy voted with the liberals to get it over the top.
ReplyDeleteAs far as our Roberts project is concerned, I will point out that Obama originally allowed the DOJ to defend DOMA, but then reversed course in the midst of it and instructed the DOJ to advise the Supreme Court that DOMA is unconstitutional. I doubt you can find another example of the president of the United States instructing the DOJ to recommend to the Supreme Court that a federal law under challenge is unconstitutional. Under this extreme circumstance, to suggest that Obama had no interest in this case is absolutely ABSURD on the face of it (to say nothing of the fact that Obama himself has made public speeches strongly supporting gay marriage).
A word of caution: Do not listen to what the "talking head pundits" say on TV about this decision. Read it for yourself. Maybe they will change their tune after they actually read it completely, but most of their comments are WAY off the mark. If you want to understand what the Court ruled, you should read Roberts dissent. Properly understood, this is a federalist states rights decision. What DOMA did was have the federal government override state law in a area (family law) which the Constitution says the federal government has no constitutional authority. If a state like Washington defines "marriage" in a way different than Alabama defines marriage, the federal government must respect state laws and give married couples in Washington state the same federal treatment as married couples in Alabama. DOMA did not do that, and was, therefore, unconstitutional under the 5th Amendment.
--David