Affirmative action alive and well–for now–as the Supreme Court throws Fisher back to the lower court


To me, Supreme Court rulings always tend to be so Solomonic.

But in Fisher v. University of Texas, SCOTUS, in its wisdom, actually found a way to cut the baby in half without cutting up the baby.

Instead of using Fisher as the case to end affirmative action, SCOTUS chose to vacate the ruling that allowed the case to be argued in the first place, and then sent it back to the lower court.

In fact, Justice Kennedy’s majority opinion is really more instructive for the plaintiff (and any anti-affirmative action plaintiff in the future, for that matter). It actually reads like a tome on “How to argue affirmative action” while using the standards of Grutter, the current affirmative action legal standard.

Kennedy’s opinion says the 5th Circuit didn’t apply “strict scrutiny,” which would require a court to “verify if it’s necessary” for a school to use race in admissions for diversity.

Instead, the lower courts deferred to the university, and that wasn’t strict enough to satisfy Grutter or the justices. Lower courts still need to defer to universities about the need for diversity, but the Court has now defined how it will look at the means used to fulfill that need.

And when the case is remanded, UT-Austin will need to establish that its admission program complies with the Grutter standard.

Meanwhile, affirmative action proponents can breathe easier and colleges can continue to use racial and ethnic diversity in admissions.

That’s a definite win for affirmative action supporters. But how long can anyone be certain that programs using race as a factor will have the Court’s blessing?

If anything, the court gave both sides reason to toast—with warm champagne.

And yet affirmative action supporters got a 7-1 reprieve with all the rabid opponents joining in with some liberal supporters like Justices Breyer and Sotomayor. Only Justice Ginsburg stuck to her guns and dissented, indicating that one pass at Fisher was definitely enough.

If 7-1 sounds like clear support for affirmative action, think again. All you need is a quick read of Justice Thomas’s concurring opinion in Fisher to conclude that this 7-1 majority decision shouldn’t be misinterpreted as a major victory for affirmative action.

Thomas’s opinion, from an Asian American standpoint, is offensive from the start. As an advocate of the 14th amendment and equal protection under the law, he shares his opinion of when government is right to discriminate.

That instance: The internment of Japanese Americans during World War II.

So by Thomas’s logic, internment is good. But government’s use of discrimination in affirmative action? Not good.

Thomas then essentially summarizes some points Fisher used, saying that whites and Asian Americans have been hurt by affirmative action. He even throws in the old mismatch idea of how affirmative action is actually a blow to unqualified minorities’ self-esteem. (But who ever said affirmative action was for the unqualified?)

Look on the bright side. It may be the last time most of you reading this may find common ground with Justice Thomas, the beneficiary of affirmative action who would passionately deny it to others.

Emil Guillermo is an independent journalist/commentator.
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The views expressed in his blog do not necessarily represent AALDEF’s views or policies.
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