The US Supreme Court has today handed down judgment in the eagerly anticipated case of Fisher v University of Texas. It concerns the compatibility of the university’s admissions programme with the Equal Protection Clause of the Fourteenth Amendment. This programme combines a “Personal Achievement Index,” which takes an applicant’s race into account, and automatic admission to any student who achieves the top 10% of high school grades, regardless of other factors. By a majority of 7-1 (with Justice Ginsburg dissenting and Justice Kagan recusing herself), it remanded the judgment to the Court of Appeals for redetermination.
The reason given for holding the Court of Appeals’ initial judgment to be incorrect was that it did not apply “the correct standard of strict scrutiny.” This was based on its holding that the previous case of Grutter v Bollinger, in which the Supreme Court upheld the constitutionality of an admissions programme which used racial considerations to promote the educational benefits of student diversity and required courts to give substantial deference to universities. This deference was held by the Court of Appeals to be twofold: both in respect of the “compelling interest” which racially classificatory acts must serve, and in the “narrow tailoring” to this interest which it must demonstrate. These are the two prongs of the “strict scrutiny” test which the Supreme Court has consistently, since Adarand Constructors v. Peña, held to apply to all cases which involve differential treatment on the basis of race, no matter their underlying purpose.
Justice Kennedy, delivering the majority judgment, held that this was an incorrect reading of Grutter. He stated that the case made clear that it was for the courts, not for university administrators, to ensure that practices which rely on racial classifications are specifically and narrowly framed to accomplish their purpose. The court had to also be satisfied that no workable race-neutral alternative would produce the educational benefits of diversity. The Court of Appeal’s erred in its starting point. It had presumed that the university had used racial criteria in good faith, and to place on Miss Fisher the burden of rebutting this presumption. The decision in Fisher clarifies that this presumption was impermissible under the Equal Protection Clause.
In effect, the Supreme Court’s criticism is institutionally-based: whilst deference may be accorded to universities on the issue of whether the use of race-conscious admissions procedures furthers a compelling interest, no such deference exists with respect to whether these procedures are narrowly tailored to that interest. As the Supreme Court has consistently held that all racial classifications, regardless of their benign intent, are subject to the same level of scrutiny, there was no room for any good faith criterion in the case of university admissions programmes. The case was therefore sent back to the Court of Appeal for redetermination under the correct test.
This judgment is more encouraging than many supporters of affirmative action had feared. The Supreme Court has not ruled that racial diversity in higher education is an impermissible interest, which would have been the death knell for affirmative action in the United States. Only Justice Thomas, in his concurring opinion, would have ruled that the use of race in university admissions was categorically prohibited by the Equal Protection Clause. Rather, the majority opinion has made it clear that equality law in the US remains strictly symmetrical in its approach: no leniency is to be given to measures that seek to use racial classifications to promote diversity within educational institutions.
Claire Overman is currently reading for the BCL at the University of Oxford and is a regular contributor to the OxHRH Blog.
Not for the first time Thomas J was right and the Court wrong. If affirmative action gives a place to a black applicant which on merit would have gone to a white applicant that is discrimination. Race is never merit.
Here in the UK I would like to see admissions run on a form which did not disclose the name of the applicant; nor the school or sort of school; nor what the parents do for a living or whether they were in higher education, which is very East German. The process should end after A-Level results for October of the following year so that everyone takes a gap year – some would not show up but they are the ones who show up and drop out with huge debts.
Then there could be no discrimination – and no social engineering. Pure merit.