SCOTUS Punts On Affirmative Action; Clarence Thomas Calls Practice ‘A Nonstarter’
June 25, 2013 by Ben Bullard
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.