In a 7-1 vote, the Supreme Court has decided to wait for another day to kill affirmative action. The Court has sent plaintiff Abigail Fisher's case back to the lower Fifth Circuit Court of Appeals, ruling that the lower court did not properly examine a section of Grutter v. Bollinger, a prior Supreme Court affirmative action decision, in its consideration. The Supreme Court has now asked the Fifth Circuit to again look into the case, but to ask the University of Texas to prove, as Grutter demanded, that considering race in its admissions policies is a compelling state interest. The opinion, written as expected by Justice Anthony Kennedy, was ultimately rather narrow.
The Supreme Court did not overturn Grutter, as many affirmative action watchers thought they might, but neither have they released University of Texas from further legal action. In her lone dissent, Justice Ruth Bader Ginsburg said she did not think there was any need to send the case back to the Fifth Circuit. She argued that the university's admissions program was fastidiously modeled on prior Supreme Court rulings so as to ensure its legality.
The case centered around the complaints of Abigail Fisher, a white female student who was denied admission to the University of Texas at Austin and argued that the university's race-conscious admissions policies discriminated against her because of her race. The University of Texas has staunchly defended its admissions policies, and argued that their practices hew exactly to the law as most recently interpreted by Supreme Court rulings just a decade old. UT Austin uses a blended admissions policy, whereby three-quarters of students are admitted via a race-blind program called the Top 10 Percent Plan, which automatically extends offers to the top graduates of each Texas public high school. The remaining incoming class is composed of students admitted after the consideration of many factors, of which race is but one.
UT Austin, in its defense, even pointed out that because of Fisher's academic scores, she would not have been admitted, no matter what her race was. But that, and the fact that the Supreme Court most recently answered a challenge to race-conscious admissions policies in just 2003, did not stop the Supreme Court from taking up Fisher's case. The eagerness with which Chief Justice John Roberts has seized upon affirmative action has signaled to many that he's prepared to eliminate it in his tenure.
Despite having been argued in October, the Court's ruling came in the final days of the term after weeks of tense anticipation. Racial justice advocates and supporters of affirmative action had long been bracing for a further narrowing of universities' rights to exercise the policy, if not the elimination of it altogether.
The ruling will not be the final word on affirmative action though. In March the Supreme Court agreed to hear yet another affirmative action challenge in next year's term. Stay tuned for more from Colorlines.