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Affirmative Action Survives — For Now

Harpalani_Vinay thumbBy Vinay Harpalani [via ACSBlog]

More than nine months after it heard oral arguments, the U.S. Supreme Court finally rendered its opinion in Fisher v. University of Texas[1] In a surprising 7-1 ruling, with only Justice Ginsburg dissenting, the Court vacated the Fifth Circuit ruling and remanded the case, but it did not declare the University’s admissions policy to be unconstitutional. Rather, it instructed the lower courts to apply strict scrutiny with regard to the key question: whether the University of Texas at Austin needs to use a race-conscious admissions policy, in addition to the Top Ten Percent Law, to achieve the educational benefits of diversity. This is exactly what one of my recent law review articles on the case had recommended, albeit for different reasons. [2]

Make no mistake about it: given the current composition of the Supreme Court, this is the best realistic outcome for proponents of affirmative action (I consider myself to be a strong one). Otherwise, Justices Breyer and Sotomayor, both of whom support race-conscious admissions policies, would not have voted with the majority. The Supreme Court’s opinion in Fisher pretty much leaves the framework of Grutter v. Bollinger [3] in place. The only change is that the language of “good faith” in Grutter is more restricted, and the meaning of this language was already ambiguous. [4]

In Fisher, the Court states:

[t]he reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the edu­cational benefits of diversity . . . [and] . . . [i]f “‘a nonracial approach . . . could promote the substantial interest about as well and at tolerable administrative expense[]’” . . . then the university may not consider race. [5]

The Court does not elaborate on what constitutes a “workable” race-neutral alternative or a “tolerable administrative expense.” Grutter itself stated that percentage plans such as Texas’s Top Ten Percent Law were not adequate substitutes for holistic race-conscious admissions policies, because they could not work for graduate and professional schools, [6] and because “they may preclude the university from conducting the individualized assessments necessary to assemble a student body that is not just racially diverse, but diverse along all the qualities valued by the university.” [7] The majority in Grutter had also rejected lotteries and lower admissions standards as substitutes for race-conscious policies. [8] Nothing in today’s Fisher ruling negates these aspects of Grutter. Also, the Supreme Court does not offer any more guidance on the meaning of “critical mass”—which was a major point of contention in the Fisher oral argument—or on the educational benefits of diversity. The District Court and possibly the Fifth Circuit will have to reconsider all of these issues, applying strict scrutiny instead of good faith to all aspects of its review.

Moreover, because most other states do not have such plans such as the Top Ten Percent Law, they are not in the same boat as the University of Texas, and today’s ruling does not compel universities in those states to do anything differently. We can certainly expect conservative organizations to bring more challenges to affirmative action in the future, but that was bound to happen anyway. [9] Today’s ruling in Fisher does not do anything much to help them: it merely defers the important issues for later consideration. Thus, proponents of affirmative action should declare victory for now, but also they should understand that their fight to defend race-conscious admissions policies will surely continue.


[1] See Fisher slip opinion at [For additional background and materials on the case, see the Oyez Project’s summary page here. —Ed.]

[2] See Vinay Harpalani, Diversity Within Racial Groups and the Constitutionality of Race-Conscious Admissions, 15 University of Pennsylvania Journal of Constitutional Law 463, 526 (2012) (“If the Supreme Court adopted . . . [the test that I propose] . . . it would vacate the Fifth Circuit ruling in Fisher, but it would not declare UT’s race-conscious policy to be unconstitutional. Rather, it would remand the case for review based on the more stringent standard proposed here.”) On p. 13, the Supreme Court’s slip opinion in Fisher states that the University of Texas has to “prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.” My Article, on p. 526, states that the University should have to prove that its race-conscious policy is “narrowly tailored to fit the compelling interest of attaining within-group diversity and its educational benefits.” This is the same standard, although not for the same reasons: the Supreme Court did not address the issue of within-group diversity, which was the specific focus of my Article.

[3] 539 U.S. 306 (2003).

[4] See Harpalani, supra n.1, at 518-20 (arguing that Grutter majority opinion seems to suggest “good faith” deference regarding need for race-conscious policies, but that this would not likely survive in Fisher given Justice Kennedy’s dissent in Grutter).

[5] Fisher at 11.

[6] Grutter at 340.

[7] Id.

[8] Id.

[9] Even if the Court had narrowed or overturned Grutter, opponents of affirmative action would likely target other diversity initiatives, perhaps arguing that the Top Ten Percent Law is not really “race-neutral.” See Harpalani, supra n.2, at 469 n.15. They might also claim that universities were still using race surreptitiously. See Vinay Harpalani, Fisher’s Fishing Expedition, 15 U. Pa. J. Const. L. Height. Scrutiny 57, 69 n.93, 71-72 (2013).

Vinay Harpalani, J.D., Ph.D., is Visiting Assistant Professor of Law at IIT Chicago-Kent College of Law.

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