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
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
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.