Supreme Court Issues Big Non-Decision on Affirmative Action

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 In a 7-1 vote, the Supreme Court has decided to wait for another day to kill affirmative action. The Court has sent plaintiff Abigail Fisher’s case back to the lower Fifth Circuit Court of Appeals, ruling that the lower court did not properly examine a section of Grutter v. Bollinger, a prior Supreme Court affirmative action decision, in its consideration. The Supreme Court has now asked the Fifth Circuit to again look into the case, but to ask the University of Texas to prove, as Grutter demanded, that considering race in its admissions policies is a compelling state interest. The opinion, written as expected by Justice Anthony Kennedy, was ultimately rather narrow.

The Supreme Court did not overturn Grutter, as many affirmative action watchers thought they might, but neither have they released University of Texas from further legal action. In her lone dissent, Justice Ruth Bader Ginsburg said she did not think there was any need to send the case back to the Fifth Circuit. She argued that the university’s admissions program was fastidiously modeled on prior Supreme Court rulings so as to ensure its legality.

The case centered around the complaints of Abigail Fisher, a white female student who was denied admission to the University of Texas at Austin and argued that the university’s race-conscious admissions policies discriminated against her because of her race. The University of Texas has staunchly defended its admissions policies, and argued that their practices hew exactly to the law as most recently interpreted by Supreme Court rulings just a decade old. UT Austin uses a blended admissions policy, whereby three-quarters of students are admitted via a race-blind program called the Top 10 Percent Plan, which automatically extends offers to the top graduates of each Texas public high school. The remaining incoming class is composed of students admitted after the consideration of many factors, of which race is but one. Read more here.