SCOTUS Punts On Affirmative Action; Clarence Thomas Calls Practice ‘A Nonstarter’

do not use

The U.S. Supreme Court was expected to hand down a landmark decision Monday, one that would determine the fate of affirmative action in America.

Instead, it took no action and remanded the case back to a lower court, opining that a university’s admissions practices weren’t properly vetted by the lower court and that, in reconsidering the case, the lower court should examine the process correctly — instead of “deferring to the University’s good faith,” as Chief Justice Anthony Kennedy wrote.

The decision doesn’t have the effect of endorsing or repealing affirmative action, but it does suggest the Supreme Court is stocked with justices who, if a merits case appeared before them, would favor ending the 48-year-old practice.

In his opinion Monday, Justice Clarence Thomas went beyond that hypothetical, letting it be known that he clearly believes there’s no place in America for institutionalized racial favoritism. He revisited his minority opinion of the 2003 case of Grutter v. Bollinger, in which the court upheld another university’s affirmative action admissions practices:

I write separately to explain that I would overrule Grutter v. Bollinger, 539 U. S. 306 (2003), and hold that a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause…Attaining diversity for its own sake is a nonstarter. As even Grutter recognized, the pursuit of diversity as an end is nothing more than impermissible “racial balancing.” … Rather, diversity can only be the means by which the University obtains educational benefits; it cannot be an end pursued for its own sake. Therefore, the educational benefits allegedly produced by diversity must rise to the level of a compelling state interest in order for the program to survive strict scrutiny.

…It is also noteworthy that, in our desegregation cases, we rejected arguments that are virtually identical to those advanced by the University today. The University asserts, for instance, that the diversity obtained through its discriminatory admissions program prepares its students to become leaders in a diverse society… The segregationists likewise defended segregation on the ground that it provided more leadership opportunities for blacks.

Monday’s case, Fisher v. University of Texas at Austin, involved a white woman who was denied admission to the university and sued on the grounds of racial discrimination, arguing that other less-qualified minority students had been admitted ahead of her, thanks to affirmative action.

Instead of delivering a seismic ruling that favored either the plaintiff or the university, the Supreme Court essentially interjected the court system into future affirmative action policies at universities by asserting that schools must apply “strict scrutiny” in justifying the role racial background is to play in the admissions process. As Amy Howe explained the ruling Monday on SCOTUS blog:

The Court in Fisher took pains to make clear exactly what this means:  courts can no longer simply rubber-stamp a university’s determination that it needs to use affirmative action to have a diverse student body.  Instead, courts themselves will need to confirm that the use of race is “necessary” — that is, that there is no other realistic alternative that does not use race that would also create a diverse student body.  Because the lower court had not done so, the Court sent the case back for it to determine whether the university could make this showing.

Personal Liberty

Ben Bullard

Reconciling the concept of individual sovereignty with conscientious participation in the modern American political process is a continuing preoccupation for staff writer Ben Bullard. A former community newspaper writer, Bullard has closely observed the manner in which well-meaning small-town politicians and policy makers often accept, unthinkingly, their increasingly marginal role in shaping the quality of their own lives, as well as those of the people whom they serve. He argues that American public policy is plagued by inscrutable and corrupt motives on a national scale, a fundamental problem which individuals, families and communities must strive to solve. This, he argues, can be achieved only as Americans rediscover the principal role each citizen plays in enriching the welfare of our Republic.

Join the Discussion

Comment Policy: We encourage an open discussion with a wide range of viewpoints, even extreme ones, but we will not tolerate racism, profanity or slanderous comments toward the author(s) or comment participants. Make your case passionately, but civilly. Please don't stoop to name calling. We use filters for spam protection. If your comment does not appear, it is likely because it violates the above policy or contains links or language typical of spam. We reserve the right to remove comments at our discretion.

  • Harold Olsen

    The (not so) Supreme Court continue to show the American people just how gutless and irrelevant they have allowed themselves to become. They are useless.

  • laura merrone

    I couldn’t have said it better…very confusing decision…

  • Warrior

    And guess what our esteemed health care providers are gearing up for? That’s correct. A tremendous “influx” of foreign medical students. Psst, can you keep a secret? Ok, they will work for less! See, there are other “ways” to bend the curve.

    • Nadzieja Batki

      They will be more worthless as doctors as they are now,so take care of yourself physically so you do not fall into their clutches. They may supposedly treat you but given their world views they may not care if you live or die.

      • Oldmonkey

        Sounds like you are one of our dogs; was it by assimilation, US birth, or coming from a bad place? My father – In – Law never learned English, supported his family, hating the government he left, and Democrats here.

  • Nadzieja Batki

    What a copout by SCOTUS. Afraid to make hard decisions because they want to be liked.

  • rbrooks

    the real problem is a lack of sufficient openings in the education system. perhaps we could require american students first. or even expand the present facility’s.

    repealing affirmative action, which should have never been passed, does not change this particular problem.


    Affirmative action is passe’, the need for it has now passed and if you cannot make it on merit into a job, a school or some other issue you cannot qualify for, you are just out of luck and you will have to prove discrimination. After 40 years of stupidity and finding out that unqualified morons make the intent of this badly thought out legal scam show it did nothing for anyone of real merit and integrity, the court has now decided to dump it back on the screwed-up appeals court and try for a redo……Here’s to freedom of choice and the right to put merit ahead of unqualified whinners….

  • ChuckS123

    I’ve heard that the biggest victims of affirmative action are black kids who go to elite colleges they aren’t ready for. If you go to a college with average SAT much higher than yours, the classes will likely be harder than you’re ready for and the odds are high that you’ll fail. Better to go to a school with average SAT somewhere near yours. Lots of people go to unelite schools and do well.