Higher Education

The bell begins to toll for affirmative action

The Supreme Court delivered its long-awaited opinion in Fisher v. The University of Texas on Monday, and although affirmative action technically survives, this ruling is clearly the beginning of the end for affirmative action in college admissions. The opinion included many surprises. First, many had expected the court to split along ideological lines and find that affirmative action in college admissions was unconstitutional. Instead, the decision—supported by both conservative and liberal justices—was 7-1 (with Justice Elena Kagan recusing herself). Justice Ruth Bader Ginsburg was the lone dissenter; she would have upheld the race-conscious admission system used by the University of Texas. This may be another example of Chief Justice John Roberts striving to build consensus on the court. It was very clear from separate concurring opinions issued by both Justice Antonin Scalia and Justice Clarence Thomas that they would have voted to find affirmative action in college admissions unconstitutional.

George Nation III

The majority opinion, written by Justice Anthony Kennedy, technically preserves the possible use of affirmative action in college admissions. The opinion vacates the lower court’s decision in favor of the University, and remands the case back to the Court of Appeals for reconsideration because they failed to apply the proper standard—“strict scrutiny”—to the University’s race-conscious admissions system. Specifically, the lower court did not determine for itself whether the University’s system was “narrowly tailored.” That is, in order to satisfy the strict scrutiny standard, the University must show that there’s no other realistic alternative not using race that would also lead to racial diversity. This will be especially difficult for the University of Texas given the success of Texas’ top 10-percent rule. Under this law, any Texas high-school student finishing in the top 10 percent of his or her graduating class is automatically admitted to any public state college, including the University of Texas. This law has led to a significant increase in the number of minority students attending the University of Texas. Similar programs that give a boost to economically disadvantaged applicants regardless of race have also resulted in a significant increase in the number of minorities admitted to other colleges.

The success of these facially race-neutral programs creates a big hurdle for the University of Texas in trying to establish that its race-conscious system is truly necessary, which is something required by the strict scrutiny standard. Another important problem for the University is that it adopted its current race-conscious admissions system in order to admit a “critical mass” of minority students. However, the University has failed to articulate exactly what constitutes a “critical mass.” This is important because under the strict scrutiny standard, it must be clear what the goal of the program is in order to tell if the program is narrowly tailored. In other words, the court must know exactly what goal the University is trying to accomplish in order to determine if the use of race is truly necessary to accomplish it, and at what point race can stop being used because the goal—a critical mass of minority students—has been achieved. I doubt that the University’s race-conscious admissions system will survive the remand.

Make no mistake: This decision is the death knell for affirmative action in college admissions. There’s an old saying in constitutional law regarding the strict scrutiny standard: it’s strict in theory but fatal in fact. The strict scrutiny standard is very difficult to meet. The Supreme Court’s decision is likely to encourage many other cases challenging the use of race-conscious admissions systems at public colleges. These colleges, like the University of Texas, are likely to fail strict scrutiny review. Fisher is the beginning of the end for the use of race in college admissions.

Chief Justice Roberts successfully brokered a 7-to-1 decision, but this near-unanimity is unlikely to last long. For the next term, the court has placed on its docket another case involving affirmative action. The Schuette case, which concerns a 2006 referendum in Michigan where voters prohibited the use of race in college admissions, is likely to see a court split along ideological lines that ultimately upholds the referendum.

George Nation III, a frequent media commentator on Supreme Court issues, is a professor of finance and law at Lehigh University.

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