The U.S. Supreme Court declined to make a substantial ruling on the validity of affirmative action Monday, sending the issue back to the lower courts.
Seven of the nine justices joined in the Fisher v. Texas opinion, written by Justice Anthony Kennedy. Justice Ruth Bader Ginsburg dissented, while Justice Elena Kagan recused herself from the case. The Court reversed the Fifth Circuit Court of Appeals, but on procedural grounds, ruling that affirmative action policies should be held to a higher level of scrutiny than the lower court applied.
The Court did not issue any new ruling on the general merits of affirmative action policies or the specific merits of the Fisher case, but the justices did assert that any affirmative action programs must be "narrowly tailored" to the goal of diversity in education. They concluded that the lower court had not sufficiently considered whether the program in question was appropriately tailored.
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"In this case, as in similar cases, in determining whether summary judgment in favor of the university would be appropriate," Kennedy wrote, "the Court of Appeals must assess whether the university has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity."
The case involved a white female student who was denied admission to the University of Texas-Austin in 2008. The university uses a Top 10 Percent Plan, which guarantees admission for students in the top 10 percent of their high school class. The student, Abigail Fisher, was not part of that group, so she was evaluated with a second group of students in which race is a contributing -- though not final -- factor in determining admission.
Fisher's lawyers argued that the Top 10 Percent Plan had created a sufficient amount of diversity (and there is some evidence that the policy has led to a more diverse student body) so including race as a factor in the second level of the admissions process was unconstitutionally discriminatory. Fisher had lost that argument in the U.S. district and appeals courts.
The Court's decision means the university's program will remain in effect, though the case will continue either in the Fifth Circuit appeals court or in the U.S. district court where it began. Even once the lower courts restart the case, however, it might not return to the Supreme Court, says Alan Jenkins, a former Justice Department lawyer who now heads Opportunity Agenda, which supports affirmative action policies.
That's because, in Jenkins's view, the Court is likely to consider its role in the Fisher case completed. It instructed the lower courts' on what standard to apply to the case, and it need not involve itself any further, even if the lower courts' future rulings are eventually appealed to the Court.
"It would be surprising for the Court to take up this particular case in the future," Jenkins says. "The Court typically does not involve itself in the day-to-day implications of the law. They were basically clarifying what they meant in previous cases. Unless the lower courts completely ignore what was said or get it completely wrong, the Court's work is done. They only step in when they feel there's confusion."
After the ruling, advocates of affirmative action praised the decision because it left the last major Court decision upholding affirmative action, Grutter v. Bollinger, in place.
"The use of race-conscious measures to achieve educational benefits is still very much alive," says Francisco Negron, general counsel for the National School Boards Association, which filed an amicus brief in support of the University of Texas. "Public schools can still seek educational value of diversity."
The decision also therefore ensures that all other affirmative action programs nationwide will continue to function as they currently do.
"Public colleges and universities will continue to pursue diversity in accordance with the established legal framework," said Muriel Howard, president of the American Association of State Colleges and Universities, in a statement. "State college and university leaders understand that the college experience is enriched through interactions and exchanges of students, faculty and staff from a wide array of social, cultural and economic backgrounds. We value diversity and remain committed to our mission of providing access to high-quality, affordable college opportunities.”
