Supreme Court upholds the value of diversity in higher education

By: Conor Ahern, Ford Law Fellow and Trevor Boeckmann, Holley Law Fellow

In an important decision this morning, the Supreme Court decided – or, more accurately, decided not to decide – on the constitutionality of an affirmative action program at the University of Texas (UT). The case, Fisher v. University of Texas, was brought by a white woman who was denied admission to UT in 2008. Two earlier decisions from 2003, Grutter and Gratz, had upheld affirmative action programs, but limited how much they could focus on race.

Today’s opinion fell somewhere between a punt and a compromise. Justice Kennedy, who wrote the opinion, was joined by justices from both the court’s ideological left and right wings. The opinion examined UT’s program under the Equal Protection Clause of the Fourteenth Amendment. Because the program explicitly considers an applicant’s race, the court held that it should be held to a judicial standard known as “strict scrutiny.”

Strict scrutiny has two parts. The first looks at the goal of the policy. In order to be constitutional, there must be a “compelling governmental interest” in achieving whatever that goal is. Earlier cases had established that diversity in education was important enough to pass this part, and Kennedy’s opinion reaffirmed that. The second half of strict scrutiny looks at the means: the policy must be “narrowly tailored” to accomplishing the goal – here, diversity in higher education. In other words, affirmative action policies are legal only when there is no race-neutral way to have a broadly diverse student body, including students from different races, educational backgrounds, socioeconomic statuses, and many other qualifications and characteristics.

The court found that the Fifth Circuit Court of Appeals, which upheld Texas’s program last year, did not consider the second part: whether the school had other race-neutral options. The Supreme Court is returning the case to them to consider again. Regardless of what the Fifth Circuit decides, it is likely the Supreme Court will again hear a case about affirmative action in the next couple of years.

Justice Thomas wrote a lengthy concurrence explaining why he believed that the Equal Protection Clause categorically bars the use of race as a factor in higher education admission decisions. Thomas invoked several seminal Segregation Era—Supreme Court cases to explain his belief that the educational benefits of diversity do not constitute a compelling state interest, and therefore may not be used to justify any type of racial discrimination. In Justice Thomas’s opinion, this would entirely invalidate affirmative action going forward.

The case’s sole dissent came from Justice Ginsberg, who reiterated her belief that public universities are free to compensate for legally sanctioned inequality by favoring race in admissions decisions. Justice Kagan recused herself from the case because of her earlier involvement as Solicitor General.

Next term, the Supreme Court will hear a case from Michigan challenging a state ban on affirmative action. The two cases essentially mirror each other: Fisher asked whether a state is allowed to use affirmative action; Schuette asks whether a state may prohibit it. Still, whatever the Court decides could have an impact as Fisher, and other affirmative action cases, continue moving through the courts.