The Latest

Dear Colleges and Universities, Fisher v. UT Austin Did Not Eliminate Affirmative Action

The best thing about the last week of the Supreme Court’s term is that the waiting ends and we can move from predictions (gloomy or otherwise) to analysis.

Here’s the bottomline from the much anticipated Fisher v. UT Austin decision — affirmative action in higher education can and should continue (please see our amicus brief for a whole host of reasons why). This is one of those decisions that deserves a close read — I’ve now done so and have included five key points from the decision that should not go unnoticed.

  1. Grutter was not overturned. In fact, the Supreme Court followed the decision in Grutter v. Bollinger, that an admissions policy that carefully considers racial and ethnic diversity as one of many factors is constitutional.
  2. The Court acknowledged the importance of diversity to institutions of higher education. The Court reiterated that it defers to a university’s judgment that such diversity is essential to the educational mission. As the Court explained, a diverse student body “serves values beyond race alone, including enhanced classroom dialogue and the lessening of racial isolation and stereotypes.” 
  3. Grutter was not overturned. Yes, I realize it was also point number one but it is worth repeating this point a second time in part because Justice Thomas wrote separately to explain that he disagreed with the Court’s prior decisions that colleges should be permitted to consider race and ethnicity in admissions programs. He even compared the justification for affirmative action to slavery — seriously. Here is an important point — no one joined Justice Thomas in that extreme opinion. Justice Scalia also wrote separately to emphasize that the parties did not ask the Court to revisit its prior decisions. No other justice joined that opinion.
  4. The Court reiterated that that the constitutional standard for considering race — what is called “strict scrutiny”  must not be “strict in theory, but fatal in fact.” In other words, the Court did not make it impossible for colleges and universities to have affirmative action programs.
  5. The Court sent the case back down to the lower courts to try again. The lower courts were instructed to give a close analysis of how the UT Austin admission program works, emphasizing that courts must not simply “defer[] to the University’s good faith in its use of rac[e]” in admissions. UT Austin has stated that it believes that it will meet that standard: “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.”

Now that the Supreme Court has spoken — again — on the constitutionality of equal opportunity programs, the hard work begins. It means that colleges and universities must recommit to ensuring that talented students from all backgrounds get a close look. The benefits to doing so will pay off not only in the classroom, but in the next generation of leaders.

It's time for change, and we must act now. Time's up.