Affirmative action survives, under tougher standard

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It was a case that could have led to the constitutional condemnation of school affirmative action policies across the country.

But instead, the justices of the U.S. Supreme Court in Fisher v. University of Texas at Austin gave the lower court another crack at deciding whether the school’s policy passes constitutional muster — but not before offering a slightly tougher standard for the school to prove the need for considering race among school admission factors. Call it “no-other-way strict scrutiny.”

“The court put a wrinkle into the analysis,” said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund Inc., one of a host of organizations that chimed in on the case as amici curiae. “That standard is certainly a sharper and tighter standard. But we believe the University of Texas can meet it.”

Parties on both sides claimed victory after the court’s ruling that making a “good faith effort” to increase diversity is not enough under the court’s strict scrutiny analysis established in the 1978 case Regents of the University of California v. Bakke and the 2003 case Grutter v. Bollinger.

“The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity,” Justice Anthony M. Kennedy wrote for the majority in the court’s 7-1 ruling June 24. If there is a race neutral way of achieving diversity within a student body, then a policy that considers race is not permissible, the court held.

The justices remanded the case back to the 5th U.S. Circuit Court of Appeals to reexamine whether the university met the standard of proving that there were no race-neutral alternatives available to achieve a diverse student body other than its policy, which considers race as one of many factors in a holistic review process.

Keeping an eye on lower courts

Bert W. Rein, founding partner of the Washington firm Wiley Rein LLP who represents plaintiff Abigail Fisher — a white applicant who sued after she was denied admission — said the decision gives force and meaning to the strict scrutiny standard already set by the court.

“No one really knew what [strict scrutiny] meant,” Rein said.

But now, he said, lower courts reviewing affirmative action policy challenges “will start to take it more seriously and ask the hard questions.”

Those supporting the school’s policy cheered the fact that the court did not overturn Grutter, which held that diversity is a compelling interest for schools and that race can be considered.

“Fisher leaves intact the Supreme Court’s precedent in Grutter that universities can adopt affirmative action plans when necessary, and proponents of diversity in higher education can take comfort in that,” said Jon Greenbaum, chief counsel and senior deputy director of Lawyers’ Committee for Civil Rights Under Law in Washington.

Other affirmative action supporters saw the glass as a little less full.

“It’s a humongous victory in a sense that any day an asteroid passes the earth without hitting it, it is a good day,” said F. Paul Bland, Jr., a senior attorney at Public Justice, speaking Tuesday at a Supreme Court review event hosted by the American Constitution Society in Washington.

Bland expressed concern that, by toughening the standard for schools to prove the need for affirmative action policies, the Supreme Court could be sending a message to lower courts to cast a dubious eye on schools’ claims.

He said he’s seen a similar effect after Supreme Court rulings in cases involving consumer or employment rights claims, such as Wal-Mart Stores Inc. v. Dukes. While that ruling did not outlaw employment bias action claims per se, Bland noted, it still sent a strong message to lower courts that allowing such classes to proceed could lead to a reversal on appeal.

“In lower courts, they are hearing the music of the Supreme Court rather than listening to the words,” Bland said.