Fisher v. University Of Texas At Austin Ruling Leaves Universities In Limbo

After months of waiting for the Supreme Court to issue a sweeping ruling on affirmative action in the Fisher v. University of Texas at Austin case, universities and education groups are trying to make sense of Monday's decision.

"In a way, it was really a decision about the U.S. Court of Appeals in the 5th Circuit and not about affirmative action," said Catharine Hill, the president of Vassar College in upstate New York. "It just means the discussion is going to continue ... It starts the clock over again."

The court on Monday issued a 13-page opinion that did little to change existing law with regard to the use of race as a criterion in university admissions. In a 7-1 majority opinion written by Justice Anthony Kennedy, the Supreme Court asked the U.S. Court of Appeals for the 5th Circuit to re-evaluate the case of plaintiff Abigail Fisher, who claimed that the university unconstitutionally discriminated against her as a white woman in rejecting her application.

"Strict scrutiny must not be strict in theory but feeble in fact," Kennedy wrote. "The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity." These alternatives could include things such as targeted recruitment and financial aid packages tailored to help low-income students. The court upheld Gratz v. Bollinger and Grutter v. Bollinger, two cases fundamental in defining universities' rights to consider race as an admissions factor.

While the decision further questions the legality of Texas' admissions policies, the university says it is committed to defending them. "We're encouraged by the Supreme Court's ruling in this case," the university said in a statement. "Today's ruling will have no impact on admissions decisions we have already made or any immediate impact on our holistic admissions policies."

Some observers, such as University of California, Riverside's William Kidder, expects the 5th Circuit to kick the case back to the district court -- and perhaps a trial.

Debra Humphreys, a spokesperson for the American Association of Colleges and Universities, says other universities will likely take this window of time to shore up the legal defense of their policies. "Most colleges will look at the decision and see it as a continuing window of opportunity to re-examine one more time that their policies are in fact adequate enough in terms of meeting the court's standard of 'strict scrutiny,'" she said. "The standard hasn't changed, but the question is whether universities have built their own evidentiary bases for justifying their policies."

Campuses were watching the case closely, Humphreys said, expecting a takedown of earlier affirmative action cases. "I don't think much has changed as a result of this decision," she added.

Vassar is a small school that evaluates applicants individually and takes race into account as one of many admission factors, Hill says. Given Fisher's outcome, she said that if a prospective student sues Vassar as Fisher sued Texas, she would "feel confident that we're completely in accord with the law that stands today."

Some civil rights advocates are lauding the decision and its upholding of previous affirmative action cases as a sign of the court's commitment to diversity and affirmative action. "Today’s decision is an important victory for our nation's ongoing work to build a more inclusive, diverse America," said Wade Henderson, president of the Leadership Conference on Civil and Human Rights, an umbrella group that represents organizations such as teachers unions and the NAACP. "We believe that the University of Texas' admissions policy is a carefully crafted one that will ultimately be upheld by the Court of Appeals."

The ruling, says Francisco Negrón, the National School Boards Association's general counsel, could help K-12 public school districts continue to use race to meet their diversity goals. "A lot of our districts are dealing with racial and ethnic diversity," he said. "We wanted to see their ability to continue to let those diversity practices stay alive, and under this decision that's true today."

But others are more wary. The NAACP Legal Defense Fund lauded the decision, but said in a statement that the "sharpening" of the race-neutral edict "added a wrinkle" to colleges' ability to achieve diverse student bodies.

Similarly, diversity law expert and Indiana University Maurer Law School professor Kevin Brown said that the decision leaves open the question of whether the ruling applies primarily to Texas or whether it could affect other universities, particularly those with similar admissions policies. "It could mean that the court is telling these universities, 'I want to put you on notice that we're going to really force you to think about race-neutral alternatives,'" he said.

Brown also read the decision as curtailing the way universities can meet specific diversity goals. The ruling, he said, threatens the measure that some universities use to determine their diversity goals, seeking to match the percentage of minority students on campus with the minority's population within that school's state -- which is to say that the University of Texas might be unable to "justify using considerations of race to admit higher percentages of underrepresented minorities than, say, the University of New Hampshire."

CORRECTION: Language has been amended to reflect that the NAACP Legal Defense Fund is not affiliated with the NAACP.



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