Could SCOTUS ruling actually endanger affirmative action policies?

The policy's advocates are hailing the Court's decision -- but there might be a long-term downside

Published June 24, 2013 10:07PM (EDT)

The Supreme Court's decision on Monday to send its big affirmative action case back to the lower courts has been hailed by civil rights groups as a victory for the policy's advocates. But some legal experts are not so sure.

The case, called Fisher v. University of Texas at Austin, involved a white woman who sued the school after it rejected her in 2008, arguing that the school’s affirmative action policy violated the Equal Protection Clause of the 14th Amendment. In a 7-1 decision, the Court found that in this case, the 5th Circuit Court of Appeals improperly applied the "strict scrutiny" test, and gave undo deference to the "good faith" of the University of Texas when it ruled in the school's favor.

Strict scrutiny is the highest possible standard that the courts apply when reviewing laws that either discriminate on the basis of race, gender or some other characteristic, or directly interfere with a constitutional right. In order to determine whether a law stands up to strict scrutiny, the court will ask whether the government has a compelling interest for creating the policy, and whether the law is “narrowly tailored” to that particular interest. Here, the Court found that the 5th Circuit had not adequately applied that test.

"The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity,” wrote Justice Anthony Kennedy in the majority opinion. He continued: “Rather than perform this searching examination, the Fifth Circuit held petitioner could challenge only whether the University’s decision to use race as an admissions factor ‘was made in good faith.’ It presumed that the school had acted in good faith and gave petitioner the burden of rebutting that presumption.”

Because the Court did not strike down or narrow the decision it made in 2003 upholding affirmative action policies in the landmark case Grutter v. Bollinger, supporters have hailed the decision, saying that the Court has reaffirmed that there's a compelling interest for the government to implement policies that take diversity into account for admissions.

Wade Henderson, president and CEO of the Leadership Conference on Civil and Human Rights, called the decision a "victory" in a phone call with reporters. Damon Hewitt, of the NAACP Legal Defense and Educational Fund, said that this decision means that they "all live to fight another day on this." Ben Jealous, the president and CEO of the NAACP, said the group is "pleased" with the court's decision.

And Salon contributor Sally Kohn writes: "What is clear is that the Supreme Court has affirmed its previous rulings, consistent with the history and values and law of our nation, that the quest to treat all people as equal can and must be an active and affirmative pursuit."

But, as Sherrilyn Ifill of the NAACP Legal Defense and Educational Fund put it in the same conference call with reporters, the Court's decision creates a "sharper and tighter standard" for schools that wish to implement affirmative action policies.

While Ifill argued that "we believe the University of Texas at Austin can meet" this standard when this particular case is remanded to the lower court, other legal experts have theorized that the ruling could make it harder for affirmative action policies to withstand the court's scrutiny.

Ilya Somin, a professor at George Mason University School of Law and a blogger at Volokh Conspiracy, argues that this is actually a victory for opponents of affirmative action. "Until today, the conventional wisdom was that Grutter requires courts to give universities substantial deference in determining how much preference is needed to achieve a 'critical mass' of minority students diversity purposes. It will thus ratchet up the level of scrutiny applied to affirmative action programs in practice, even if one could argue that nothing has changed in theory."

He later continues:

To determine the likely impact of today’s decision, it’s worth asking the following question: How difficult will it now be for a university to prove that it is permissible for it to adopt a program of racial preferences in admissions? I say it’s going to be pretty darned hard. Without any judicial deference to their educational expertise, schools will be hard-pressed to show that their programs are “narrowly tailored” or that there are no “racially neutral” alternatives that could have achieved the same goal.

"What the Court did today was threaten colleges and universities that want to use racial preferences to come up with really good justifications for their affirmative action policies. Schools that aren’t really committed to diversity, or that go about achieving diversity in a stupid way, will surely have their programs ruled unconstitutional in the future," argues Elie Mystal of Above the Law.

Lyle Denniston of SCOTUSblog writes that the Court's decision is "hardly enthusiastic" on the part of affirmative action:

Justice Kennedy repeated a statement that the Court has often reiterated in race cases: the standard of “strict scrutiny” must not be “strict in theory, but fatal in fact.” But, he went on, “the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact.” The emphasis was different, and it obviously was intended to be a meaningful difference.

Whether a university program that takes any account of race can run this legal course and survive, whether at the University of Texas or elsewhere, will depend upon cases that are now likely to unfold across the country. There is a strong new incentive for opponents of “affirmative action” in college admissions to test virtually every such program; indeed, in some ways, the tone of the opinion would seem to invite such further testing.

Jennifer Gratz, the plaintiff in a similar case from 2003 that challenged an affirmative action policy at the University of Michigan (and the force behind a 2006 ballot measure that banned affirmative action policies in the state -- a measure now up for review by the Supreme Court next term), said that the decision shows that the Court is, in general, hostile to affirmative action policies. “This is a reminder that the Court barely tolerates race preferences and that attorneys on our side should be bold and ask for Grutter to be overturned," Gratz said in a statement.

Michael Dorf, a professor at Cornell University Law School, had a different perspective on the potential downsides of the ruling for affirmative action supporters. He told Salon that "given what many of us feared, it's about as good as one could have expected. Of course, it doesn't exactly reaffirm Grutter," but the "real worry from the pro-affirmative action side was that the Court would narrow Grutter substantially."

So, Dorf said, in this sense it was a victory. But though he disputed the idea that the Court's ruling now requires a sharper standard of review for the lower courts, he noted that "it will make it easier for District Court and Circuit Court judges who are hostile to affirmative action to claim to be relying on Supreme Court precedent in striking down affirmative action programs." But, Dorf said, the reverse is also true for liberal judges who want to uphold these policies, so we'll probably see "something of a geographical split" -- and an eventual review of affirmative action by the Supreme Court, again.

By Jillian Rayfield

Jillian Rayfield is an Assistant News Editor for Salon, focusing on politics. Follow her on Twitter at @jillrayfield or email her at

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Affirmative Action Anthony Kennedy Fisher V. University Of Texas Race Supreme Court