WASHINGTON — Nearly eight months after the U.S. Supreme Court heard oral arguments in Fisher v. the University of Texas, the court ruled Tuesday that affirmative action remains permissible in cases where there are “no workable race-neutral alternatives” to build campus diversity.
Initially considered a case with potential for a landmark ruling, the justices fell short of issuing a sweeping affirmation or elimination of race as a factor in college admissions.
The justices have sent the case back to the Fifth Circuit Court, the lower federal appeals court, for review. The majority opinion, ruled 7 to 1, argued that the lower court failed to prove the University of Texas exhausted all other race-neutral options in creating a diverse class.
When the case returns to the lower court, it must further assess whether the University of Texas has provided enough evidence to prove it has upheld the admissibility of affirmative action under previous court precedent.
In the majority opinion, Justice Anthony Kennedy said the determining factor on race-based admissions was whether or not the program fit certain strict criteria.
“The Fifth Circuit must assess whether the University (of Texas) has offered sufficient evidence to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity,” Kennedy said.
The case had provided the court a chance to review Gratz v. Bollinger and Grutter v. Bollinger, two cases involving the University and bearing the name of former University President Lee Bollinger.
In 2003, the court struck down the University’s practice of awarding points to admissions candidates based on race, but upheld the use of race as one of many factors in holistically evaluating potential students.
University President Mary Sue Coleman said in a press release that she was content with the Court's decision.
"Although Fisher does not directly apply to us, we are pleased that the Supreme Court has upheld Grutter and continues to recognize the educational benefits that come with a diverse student body," Coleman said. "At the University of Michigan, we remain committed to building and maintaining diversity on our campus, and we will continue to work toward that goal in ways that comply with state and federal law."
While the court shied from making a widespread determination in the Fisher ruling, the court has agreed to hear another case involving affirmative action in the fall. The case will concern Michigan’s Proposal 2 — a voter initiative which citizens voted to outlaw the use of race in college admissions in the state.
Law School Prof. Richard Primus, who specializes in constitutional law, said while the ruling was a surprise to many observers across the political spectrum, some within the legal community had expected this outcome.
“One big takeaway from this opinion is that 10 years later, the Michigan model for affirmative action remains the constitutional standard,” Primus said. “The court today is more conservative than it was 10 years ago. Most people though Grutter wouldn’t last. So far, the Michigan model holds up.”
Kennedy’s decision to side with the majority in this decision was not unprecedented, Primus said. Although he dissented in Grutter, Primus said Kennedy recognizes the need for diversity in higher education and this ruling was consistent with his principles.
“Justice Kennedy doesn’t think that affirmative action is always unconstitutional, and you can’t get the sweeping ruling against affirmative action without Justice Kennedy,” Primus said.
He said though Kennedy supports diversity, he does not believe affirmative action is an overall solution.
“Kennedy has said for years now that universities have a compelling interest in assembling diverse student bodies, and that interest can be sufficient to justify race-conscious admissions — he’s said that for years. He’s skeptical of (affirmative action). He doesn’t want it to be used when it isn’t necessary.”
Primus added that in Grutter, Kennedy believed the court didn’t look carefully enough at whether or not the University needed to use race-based criteria for admission. However, in Fisher v. the University of Texas, the issue was what kind of criteria the University of Texas could use — assuming that it did need to use affirmative action.
That assumption of whether or not affirmative action is necessary to achieve a diverse student body at the University of Texas is largely what is at stake in the circuit court. Because the University of Texas may seek to prove using statistics and other evidence that affirmative action policies were justified, the case may devolve to a district court first since these items cannot be heard in a circuit court.
Later this year, the University will be more closely involved with another case pending before the Supreme Court, Schuette v. Coalition to Defend Affirmative Action. At the heart of the case is the legality of Michigan’s 2006 ban on affirmative action, Proposal 2. In November, the Sixth Circuit Court sitting en banc narrowly struck down the ban — but delayed it going into effect pending the Supreme Court’s review of the case.
Primus said the Fisher case will have little to no bearing on Schuette because the cases deal with fundamentally different issues. While Fisher dealt with the necessity of affirmative action and whether it was applied correctly, Schuette focuses more on whether states banning affirmative action violate the equal protection clause of the Constitution by not allowing students to discuss the implications of race on their applications even while considering other nonacademic factors.
“(Fisher) is a case about what a university can do,” Primus said. “Schuette is about what a referendum can do. Those are the constitutional questions.”
Correction appended: A previous version of this article misstated which cases Justice Anthony Kennedy dissented in.