By Chris Hoenig
In a decision that indicates a compromise among the justices, the Supreme Court has elected not to rule on a challenge to affirmative action argued before it late last year. The 7-to-1 ruling from the court provides a small victory for opponents of affirmative action, vacating a decision by the Fifth Circuit Court of Appeals that was in favor of the narrow use of racial preferences and sending the case back to the lower court with orders to give it more intense scrutiny.
The case was brought by Abigail Fisher, a white student who claims she was discriminated against by the University of Texas at Austin because of her ethnicity, after the school rejected her application for admission in 2008.
The first major challenge to affirmative action came more than a decade after the Civil Rights Act of 1964, when the Supreme Court ruled in 1978 that using formal racial quotas in college admissions decisions was unconstitutional, violating the Equal Protection Clause in the 14th Amendment. Subsequent decisions in 1996, 2001 and 2003 upheld and expanded that ruling by preventing colleges from adding a fixed, substantial number of points to admission scores based on race.
Another 2003 decision, Grutter v. Bollinger, allowed for the continued use of race as a component in admissions policies at colleges and universities, provided the component of race is narrowly tailored within the admission decision “to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”
Monday’s opinion from the Supreme Court does not rule on the constitutionality of the University of Texas’ enrollment policy, nor does it overturn the ruling in Grutter v. Bollinger. But it does send a message on how narrowly tailored the value of race must be: “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity,” read the decision, written by Justice Anthony Kennedy. Only Justice Ruth Bader Ginsburg dissented from the group; Justice Elena Kagan recused herself, having been involved in the case as Solicitor General.
In 2008, less than 3.3 percent of the UT freshman class were Black or Latino students admitted through the program being challenged. The vast majority of the 1,713 Black and Latino freshman—nearly 26 percent of the freshman class—were admitted through race-blind admissions based on high-school class rank. The university adds that community service, work experience, extracurricular activities and awards are also part of the race-based affirmative-action plan.
The Fisher case was always more about a challenge to affirmative action than a challenge to her right to attend the university. A piece in ProPublica pointed out that while Fisher’s GPA and SAT scores were good (not great), the school’s rejection rate that year was higher than Harvard’s, and even if Fisher had received points for race and other socioeconomic factors, her application for admission still would have been rejected.