Supreme Court Rules (Punts) on Affirmative Action

By Victor Landa, NewsTaco

I spent the morning stalking the #SCOTUS Twitter feed.

I figured it was the best and fastest way to get information on the anticipated decisions that should have, could have, would have, been handed down this last week of the Court’s session. It was a lot like hanging out at the waiting room of a busy maternity ward. Nervous chatter.

There was no decision on Voting Rights, none either on Defense of Marriage or Proposition 8. We could hear on those later this week.

But the Justices did speak on Affirmative Action – the Fisher v University of Texas case, where a white student sued the school on the grounds that the university’s admissions policy discriminated against her because she was not a minority. The court remanded the case to the appellate court with instructions to get it right, or better.

The Supreme Court is looking for “narrow tailoring,” which means that the admissions policy should narrowly fit the objective and the lower court should review the case, again, to make sure that it does. In everyday parlance, they punted. This is how Justice Anthony Kennedy, who wrote the opinion, put it:

“Narrow tailoring also requires a reviewing court to verify that it is ‘necessary’ for the university to use race to achieve the educational benefits of diversity. The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”

So we haven’t heard the last of it.

The University of Texas released a statement saying they’re confident they’ll pass the narrow tailoring muster.

We will continue to defend the University’s admission policy on remand in the lower court under the strict standards that the Court first articulated in the Bakke case, reaffirmed in the Grutter case, and laid out again today. We believe the University’s policy fully satisfies those standards. We remain committed to assembling a student body at The University of Texas at Austin that provides the educational benefits of diversity on campus while respecting the rights of all students and acting within the constitutional framework established by the Court. Today’s ruling will have no impact on admissions decisions we have already made or any immediate impact on our holistic admissions policies.”

But you’d expect that.

So it’s a win for Affirmative Action in that the Supreme Court didn’t slap it away, wholesale. But it puts an onus on Universities to make a strong case for their diversity admissions policies, because the courts are watching.

It also leaves Supreme Court watchers in a tizzy.  My email buzzed all morning. This from Dr. Henry Flores:

Looks like SCOTUS will release more opinions tomorrow morning and maybe Wednesday and/or Thursday also.  There are still six more decisions with the focus on Voting Rights and DOMA.  It appears so far that SCOTUS has been siding with supremacy of federal law, insuring strict scrutiny and narrow tailoring of law.  So, the Voting Rights Act may not be struck down but the law in application to the special situation in Shelby County may be addressed.  Both in some of the dissents in various cases and in majority opinions issued today SCOTUS has pointed out that, particularly in a criminal case involving sex offender registry, that a federal law supersedes any state law.  In two cases involving employment law, the court ruled narrowly in both for employers, in one particular case Justice Ginsburg sent a message to Congress that they should review the law to see if what is in the statute is what Congress intended.

The other indicator was the Fischer, affirmative action decision, case where the court upheld affirmative action but wanted the lower court to take a closer look at the UT policy to insure it wasn’t predominantly race based.

So, in the Shelby County case SCOTUS may say that Sec 5 of the VRA is federal law well established in constitutional interpretation but Congress may wish to look at whether the data or information Congress used to base the reauthorization in 2006 was sufficient and appropriate.  SCOTUS may rule both for and against both sides.

As Carlos Guerra used to say, stay tuned.