The Supreme Court ruled Monday on one of the country's most divisive issues — affirmative action. We explain what you need to know.
Basically, the Court sent the case back down to the Fifth Circuit, which had upheld the University's admission plan. It has to reconsider the case.
Because the Court says the Fifth Circuit did not use a strict scrutiny standard when deciding the case. In earlier cases (Gratz and Grutter), the Court said that "an admissions process with such an interest is subject to judicial review and must withstand strict scrutiny." They're saying that the Fifth Circuit needs to better apply the existing law.
It's the most stringent standard of judicial review, applied to groups who are most likely to be targets of discrimination - for example, racial groups. A law or rule facing strict scrutiny must be justified by a compelling government interest; must be narrowly tailored to achieve that interest; and must be the least restrictive way for achieving that interest. The Supreme Court says that the Fifth Circuit didn't use this standard to evaluate Texas's law, and they should have.
Not much. It breaks no new ground - some commentators say "The Court punted." The vote was 7-1; only Justice Ginsburg dissented. Justice Kagan recused herself, because she was the U.S. solicitor general when the case was winding its way through the courts.
In a way, Fisher v. Texas is about a very basic legal issue: how should we interpret the Fourteenth Amendment? That's the Amendment to the Constitution that's often called the Equal Protection Clause - it forbids any state from denying someone the equal protection of the laws.
SCOTUS blog says that "everyone agrees that a key purpose of enacting the amendment in 1868 was to provide legal protection to African Americans, including particularly newly freed slaves." Since then, affirmative action provisions have generally held to be legal. But recently, conservatives have argued that the amendment may actually ban race-based programs, since they treat people of different races differently. SCOTUS blog notes that some conservatives worry that race-based programs might further divide the country.
Liberals, on the other hand, usually say that slavery caused a deep-seated inequality that requires affirmative action programs to promote social mobility and equality.
Well, no. Fisher is about the affirmative action program at the University of Texas - and by extension, all public universities who use race as a factor in admissions.
You're probably thinking of Grutter v Bollinger, the 2003 Supreme Court case that upheld an affirmative action admission policy at the University of Michigan Law School. In that case, Justice Sandra Day O'Connor wrote that the policy was OK, as long as race was just one factor Michigan considered. There can't be a quota.
The Texas system was different - almost the opposite of a quota, and some think that the Court took it on in order to gut Grutter. Under Texas' "Top Ten Percent" plan, the top 10 percent of students in each high school are automatically admitted to any public university in Texas - including the University of Texas at Austin. This fosters racial diversity because Texas schools are so segregated. High schools with a large number of minorities sent large numbers of students under the plan.Austin also uses race as one of many factors in considering whether to admit students whose grades don't fall within the top 10 percent. This makes Austin happy, because they believe diverse classrooms help students learn to overcome bias and so make for better citizens.
To make things a bit more complicated, the Supreme Court in March decided to hear another Michigan lawsuit that bans preferential treatment toward any candidates in public university admissions. Reuters, in an understatement, said, "That the court agreed to hear the Michigan case before deciding the Texas case is unusual."
Edward Blum, the head of a nonprofit called the Project on Fair Representation, was looking to bring a case that would overturn affirmative action at public universities. He was searching for a plaintiff, and found Abigail Fisher.
Fisher's father and sister went to UT Austin, and she's a soccer player and a cellist. Her grades fell just below the 10 percent cut off, though, and she didn't get in. Instead, she attended Louisiana State University.
The University of Texas at Austin says that Fisher wouldn't have been admitted even if race hadn't been a factor.
Affirmative action as it's practiced at the University of Texas will probably be struck down.
Affirmative action supporters left the October arguments very worried. They had expected the Court's four conservative members to challenge university lawyers, and they did. But Justice Anthony Kennedy, usually considered the swing vote on social issues, also expressed doubts. He said he didn't think the university could justify its use of race as a factor in all admissions, particularly since the Top Ten Percent plan already ensured diversity. SCOTUS blog notes that Kennedy was part of the team that struck down affirmative action in Grutter, so it seems his views haven't changed
Well - maybe. The Justices have taken an unusually long time to issue a decision after the October arguments. That likely means they debated the issue for a long time. What we don't know is how wide-ranging the decision will be. Will it ban affirmative action at all public universities? Or will it issue a narrow decision limiting the use of race in admission to certain circumstances?
Either way, there will likely be decisions filed against other university admissions programs that use race as a factor in their decisions - not just public universities, but private ones as well. And the Court's ruling could very well apply to the use of other public race-based practices, like government preferences for minority contractors.
CUNY schools don't currently use race as a factor in admissions, so however the Court rules, they won't be affected. SUNY doesn't have a blanket policy. However, New Yorkers who wish to attend a public school in another state that does factor in race might be affected.
Ibram X. Kendi, assistant professor of Africana Studies at SUNY Albany, who has written about race and higher education, wrote in an email to WNYC, "If Fisher wins than the impact could be widespread, though not initially." He said that the Supreme Court "would essentially be ruling that it is no longer the responsibility of colleges (or any institution, depending on how far the ruling goes) to even acknowledge these inequities." He added that this would likely lead to class-based (instead of color-based) affirmative action, which he said, would be most detrimental to New York's black middle class and most beneficial to New York state's white working class and poor communities. "Furthermore," he wrote, "the number of black students at New York's elite institutions will continue to trend downward."