This Move By The Supreme Court Probably Means The End Of Affirmative Action

CREDIT: JACQUELYN MARTIN, AP
CREDIT: JACQUELYN MARTIN, AP

On Monday, The U.S. Supreme Court announced it will hear the case of Fisher v. University of Texas again which does not bode well for supporters of affirmative action. In 2013, the case was remanded and the U.S. Supreme Court voided the lower appellate court ruling. Then it was sent back to the Fifth Circuit court.

Abigail Fisher, an undergraduate who had been rejected the University of Texas, brought the suit in 2008. Fisher argued that the affirmative action policy was inconsistent with the 2003 Grutter v. Bollinger case, in which the Supreme Court established that universities could consider race in admissions, with limits. Universities could not use quota systems and would have to weigh many other factors on an individual basis. In Sandra Day O’Connor’s majority opinion, she speculated that sometime in the near future affirmative action would no longer be necessary and that it would be best for universities to implement a “colorblind” policy.

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The University of Texas accepts students graduating in the top 10 percent of their high school class, but students below that threshold can still gain acceptance if they score high on a test that evaluates all kinds of personal qualities, such as leadership skills and talents. That test also factored in race.

The last U.S. Supreme Court action on Fisher was very narrow and exercised skepticism toward application of affirmative action even though the standard was technically left in place.

Justice Anthony Kennedy guided the trial court judge to be more skeptical toward the university in its application of this standard. He wrote:

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

None of this is encouraging for the rehearing of Fisher v. University of Texas. It is also worth noting that Justice Elena Kagan will recuse from Fisher again because the United States was involved in Fisher in the lower courts when she was the Solicitor General.