Supreme Court Issues Decision in Fisher v. University of Texas

On Monday, June 24, the Supreme Court issued its decision in Fisher v. University of Texas. Fisher, a white applicant, had sued the University of Texas (UT), claiming that the university’s use of affirmative action in the admission process unfairly denied her a spot. Fisher claimed the use of affirmative action violated the Equal Protection Clause of the Fourteenth Amendment. The Court ruled that the lower courts had not used the correct standard of scrutiny in the evaluating the case, and sent the case back to the lower courts for further review. The Court ruled 7 to 1 on this decision, with Justice Kagan recusing herself due to previous involvement in the case during her time as Solicitor General, and Justice Ginsberg dissenting.

The focus of the decision was on the level of scrutiny the District Court and the Court of Appeals used when considering the University’s affirmative action plan. In previous cases the Supreme Court had set "strict scrutiny" as the level of scrutiny that must be used in examining race-based admission programs. Strict scrutiny is a searching examination requiring that a governmental institution must demonstrate that there is a compelling interest for the use of race in decision-making and that the procedure established for the use of race is narrowly tailored to meet the compelling interest. In previous cases such as University of California v. Bakke and Grutter v. Bollinger, the Court had found that the educational benefits flowing from a diverse student body could constitute a compelling interest. Neither side debated the whether the goal to achieve racial diversity was a compelling interest, and instead both focused on the measures used to achieve that goal. The Supreme Court ruled the Appeals Court had failed to use the strict scrutiny standard to see if the admissions process was narrowly tailored to meet the university’s goal, instead relying on UT’s assertion that it had made a "good faith" effort to limit the extent that race was used in the decision-making process.

Perhaps more interesting than the debate over the necessary level of scrutiny was the lack of debate over the necessity of affirmative action in higher education admissions. The strict scrutiny test must also be used to determine if campus diversity is truly a compelling interest under the law. While the Court’s main opinion by Justice Kennedy did not discuss this issue, concurring opinions by Justices Scalia and Thomas stated that it was not (though the dissenting opinion by Justice Ginsberg stated it was). This case may find its way the Supreme Court again after further proceedings, at which point the justices may be asked to address both the compelling interest question as well as the narrow tailoring issue.

While a broad decision on affirmative action was not provided, the court’s opinion provides a look at how the current Supreme Court views affirmative action more generally. The conservative majority is clearly skeptical, if not hostile, to affirmative action. If the court determines that there are severe limitations on when there can be a "compelling interest" for affirmative action, this may have ramifications in all settings, including the employment setting. In the meantime, though, the Fisher decision does nothing to affect the current laws and regulations regarding affirmative action in employment.