People For the American Way Foundation

Affirmative Action Remains

The Supreme Court issued its long-awaited decision this morning in the Fisher v. University of Texas affirmative action case. The Court ruled 7-1, with Justice Kennedy writing for the majority and Justice Kagan recused. The majority adhered to the principle of promoting the kind of diverse educational environment that is a key component of expanding educational opportunity and fairness to all people in our diverse society. Justice Ginsberg's dissent agreed with this principle; she dissented because she felt there was already enough evidence to support UT's case without the need to remand it back to the lower court.

UT's affirmative action program was based in large part on a similar program from Michigan upheld by the Supreme Court in 2003's Grutter case. Today's opinion, like Grutter, held that affirmative action programs are subject to strict scrutiny: The law (1) has to serve a compelling state purpose, and (2) must be narrowly tailored to meet that purpose.

The majority did not overrule past cases stating that public universities have a compelling interest in the educational benefits that flow from having a diverse student body. But they did rule that the lower court, in upholding the Texas program without the type of trial that had preceded the Grutter case, had not sufficiently inquired into whether the program is narrowly tailored to meet its purpose.

So the Court did not strike down UT's program. Instead, it sent the case back to the lower court, where UT will have the opportunity at trial to demonstrate that its affirmative action program is necessary to achieve the compelling purpose of having a diverse student body. Once the University of Texas has the opportunity to make its case, its carefully crafted affirmative action program should be upheld.

Notably, today's ruling did not follow the urgings of Justices Scalia and Thomas, who signaled in separate concurrences that seeking racial diversity in public post-secondary education is illegitimate. While they found reasons to support the main opinion remanding the case, they made clear that they would like to overrule the precedents upholding affirmative action programs in public colleges and universities. But those sentiments did not carry the day.


affirmative action, Fisher v. University of Texas at Austin, Supreme Court