SCOTUS sends affirmative action back to the lower courts

The Court did not rule on the merits of the policy itself, but ordered a new hearing on the case

Published June 24, 2013 2:57PM (EDT)

In a 7-1 decision on Monday, the Supreme Court determined that the Fifth Circuit did not properly rule on the use of affirmative action at the University of Texas at Austin, thus ordering the lower court to hold a new hearing on the case - and not issuing a ruling on the merits of the policy itself.

The case, Fisher V. University of Texas at Austin, was argued in October, and involved a white woman suing the university for rejecting her in 2008, arguing that the school's policy of affirmative action violated the Equal Protection Clause of the Fourteenth Amendment.

In its ruling, the Supreme Court found that the Fifth Circuit Court of Appeals "did not hold the University to the demanding burden of strict scrutiny" when it ruled in favor of the school, and vacated the lower court's ruling.

Strict scrutiny is the highest standard that courts apply when reviewing a law that either discriminates on the basis of some characteristic (race, gender, etc.), or (as in cases involving abortion laws) interferes with a constitutional right. In these cases, the court typically applies two tests to determine whether or not the law will survive: First, whether the government has a compelling interest for creating a policy (in affirmative action cases this is usually diversity in the classroom), and second, whether the law is "narrowly tailored" to that particular interest (in this case, that would mean there were no other race neutral policies that could accomplish the same objective).

Here, the Court found that the Fifth Circuit had not adequately applied that test, and therefore it ruled incorrectly when it granted summary judgement to the University. "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."

Justice Ruth Bader Ginsburg, who was the lone dissenter (with Justice Elena Kagan recusing herself), argued that the Fifth Circuit's ruling should be upheld. "I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious," she wrote.

Since the Fifth's Circuit's ruling is now vacated, the case will return to a lower court for a new hearing.

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

MORE FROM Jillian Rayfield