Supreme Court Review 2016/2017 TERM
WEDNESDAY, MARCH 29, 2017

HOT BUTTON ISSUES

AFFIRMATIVE ACTION

The United States Constitution, which took effect in 1787, contained no guarantees of equality to its citizenry. Rather, it declared that slaves be counted as three-fifths of a person (more than some states wanted) for the purposes of the apportionment of representatives and direct taxes (Art. I, Sec. 2) and that any slave who escaped to another state be returned by that state to their master (Art. IV, Sec. 2). In 1857, when Dred Scott, who was born into slavery, sued for his freedom and that of his daughter, who was born in a free state, the Supreme Court in Dred Scott v. Sandford held that under the Constitution, no person descended from Africans, whether slave or free, had a right to citizenship. Rather, a slave was an “article of property” and accordingly could not bring suit in federal court. The Dred Scott decision also had the effect of prohibiting Congress from regulating slavery. The decision was widely reported and served as a catalyst to the reform efforts that followed.

After the Civil War, three amendments to the Constitution (the Reconstruction Amendments) were passed: the Thirteenth Amendment ended slavery; the Fourteenth Amendment granted equal rights and due process and extended the privileges and immunities of United States citizenship to all persons born or naturalized in the US, including former slaves; and the Fifteenth Amendment granted former slaves the right to vote.

Despite the broad language of the Reconstruction Amendments, they were understood at the time to have a narrow application. For instance, even though the Fifteenth Amendment did not mention gender, those who ratified it assumed it only applied to men; not until the 19th Amendment in 1920 would women win suffrage. Similarly, while the Fourteenth Amendment purported to guarantee full citizenship and equal protection to “[a]ll persons born or naturalized in the United States,” it was not understood to require integration of the races in government, public places or places of public accommodation, such as restaurants, railcars, buses, or hotels. Indeed, in Plessy v. Ferguson, in 1896, the Supreme Court held that segregation did not violate the Fourteenth Amendment, since the accommodations provided to blacks were “separate but equal.”

In practice, separate accommodations for blacks were rarely equal. In 1954, the Supreme Court in Brown v. Board of Education held that segregated public educational facilities were inherently unequal, and therefore unconstitutional under the Fourteenth Amendment’s Equal Protection Clause. The Court accordingly ordered public schools to be desegregated.

At the same time that legal battles were being fought to integrate America’s schools, many were concerned that minorities were being systematically excluded from higher employment. A hundred years after the Reconstruction Amendments were ratified, entire industries, such as police departments and fire departments, remained all white. African-Americans, even if college educated, were relegated to work for less pay at less skilled jobs.

The federal government was the first to take action. In 1941, President Roosevelt signed an executive order outlawing discrimination in defense-related industries holding federal contracts. Next, President Truman urged the Bureau of Employment Security “to act positively and affirmatively to implement the policy of nondiscrimination.” In 1959 then-Vice President Nixon, who chaired the President's Committee on Government Contracts, declared that “the indifference of employers to establishing a positive policy of nondiscrimination hinders qualified applicants and employees from being hired and promoted on the basis of equality.”

Under the Johnson Administration, the Civil Rights Act of 1964 was signed into law, prohibiting discrimination on the basis of race, color, religion, sex, and national origin in any place of public accommodation engaged in interstate commerce. Most importantly, the law provided citizens an enforcement mechanism to hold those who violated the Act accountable: it established the Equal Employment Opportunity Commission to investigate discrimination complaints and enforce laws against workplace discrimination.

Birth of Affirmative Action
The first use of the phrase “affirmative action” occurred in an executive order, signed by President Kennedy on March 6, 1961, which required government contractors to "take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, or national origin." President Johnson subsequently signed an executive order requiring federal contractors to outline their affirmative action plans in written filings. Neither of these executive orders required federal contracts to meet concrete or numerical targets for hiring minorities.

The first affirmative action program to set a specific goal was put in place by President Nixon in 1969. The plan was motivated by a study of six trades in Philadelphia—ironworkers, plumbers and pipe fitters, steam fitters, sheet-metal workers, electrical workers, and elevator construction workers—showing that these trades disproportionately hired only 1% minority workers, despite minorities holding 30% of the construction jobs in Philadelphia. Nixon’s plan required contractors in the six trades seeking federal contracts to use a "good faith effort" to reach certain minority participation goals (5%–9% in year one, 9%–15% in year two, 14%–20% percent in year three, and 19%–26% percent in year four). It established the concept of the Minority Business Enterprise (MBE), a business that is at least 51% minority owned, operated and controlled. In 1977, President Carter signed the Public Works Employment Act into law, requiring at least ten percent of federal funds for public works projects awarded to state and local government to be spent on services or supplies from MBEs.

THE COURT WEIGHS IN
Affirmative Action in Government Contracts

In Fullilove v. Klutznick (1980) a group of white-owned construction contracting and subcontracting companies sued, alleging that they suffered economic injury under the Public Works Employment Act. In a 6-3 decision, the Court upheld the law, but disagreed on the reasons why. The majority was equally divided into two three-Justice opinions. The opinion authored by Chief Justice Burger was the narrower of the two and therefore is regarded as the plurality opinion. It held that the law was a valid exercise of Congress’s Spending Clause power and that acting in the “remedial context,” Congress had enacted a narrowly tailored approach to combat the effects of past discrimination.

Eight years later in City of Richmond v. J.A. Croson Co. (1989), the Court clarified and narrowed its conception of the appropriate “remedial context” that could justify race-based hiring plans. It considered a challenge to the City of Richmond Minority Business Utilization Plan, requiring prime contractors who were awarded city construction contracts to subcontract at least 30% of the dollar amount of each contract to one or more MBEs. There was no direct evidence that the city had discriminated on the basis of race in letting contracts, or that its prime contractors had discriminated against minority subcontractors. Rather, the city had relied on prior congressional findings that there had been widespread racial discrimination in the nationwide construction industries and that while 50% of the City of Richmond was black, only 0.67% of prime construction contracts had been awarded to minority businesses in recent years.

In a 6-3 opinion, the Court held that the City of Richmond had failed to show a compelling governmental interest justifying the Plan since there was no evidence of past discrimination in the city's construction industry that would authorize race-based relief. The Court explained:

To accept Richmond's claim that past societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door to competing claims for “remedial relief” for every disadvantaged group. The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs . . . . “Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy.”

Cronson was the first time that a majority of the Court agreed that the proper standard of review under the Equal Protection Clause was strict scrutiny, regardless of whether the racial classification at issue burdened or benefited minorities. Strict scrutiny, the most stringent of constitutional tests, places the burden of proof on the government to show that the suspect classification is the least restrictive way to serve a compelling public interest and is narrowly tailored to meet that interest. Under the narrow tailoring requirement, agencies must first consider race-neutral alternatives before using race-conscious measures.

While the Court in Cronson made clear that strict scrutiny applied to all state and local government racial classifications, the Court had not yet considered whether strict scrutiny applied to efforts by the federal government—only subject to the Fourteenth Amendment via incorporation through the Fifith Amendment’s Due Process Clause—to address past discrimination through remedial programs using racial classifications such as the awarding of a percentage of contracts or funds to minority-owned businesses.

In Metro Broadcasting, Inc. v. FCC (1990) the Court first answered this question in the negative. In a 5-4 decision, it applied intermediate scrutiny to actions taken by the federal government. Five years later, however, the Court overruled Metro Broadcasting in a 6-3 decision in Adarand Constructors, Inc. v. Peña. In Adarand, the Court held that all racial classifications, imposed by any federal, state, or local governmental actor, must be analyzed under strict scrutiny.

After Adarand’s extension of strict scrutiny to the federal government, the Clinton Administration recommended that agencies pursue race-neutral alternatives in federal procurement and limit the use of racial preferences to the “minimum extent necessary to achieve legitimate objectives.” The administration endorsed statutorily established government-wide goals of 23% contracting with small businesses, 5% contracting with business interests owned and controlled by socially and economically disadvantaged individuals, and 3% contracting with small firms in qualified Historically Underutilized Business Zones.

Despite the administration’s recommendation of race-neutral alternatives, in 2005, the U.S. Commission on Civil Rights found that ten years after Adarand, federal agencies have largely failed to apply Adarand to their federal procurement programs. Specifically, “[m]ost agencies could not demonstrate that they consider race-neutral alternatives before resorting to race-conscious programs.”

Affirmative Action in Employment
In Wygant v. Jackson Board of Education (1986), the Court considered whether race could be taken into account in teacher layoffs. As part of a collective bargaining agreement, the teachers union agreed to a layoff provision providing that in the event of layoffs teachers with the most seniority would be retained except that minority teachers could not be laid off in greater percentages than existed at the time of the layoffs in order to preserve the progress made in diversity through affirmative action programs. In a 5-4 decision, the Court held that “[a]ny preference based on racial or ethnic criteria must necessarily receive a most searching examination” and that under such scrutiny the layoff provision violated the Equal Protection Clause. Again, the Court’s reasoning was deeply divided. In a three-Justice plurality opinion, Justice Powell explained that the layoff provision was not narrowly tailored since the burden to be borne by the innocent teacher who was fired was too great an exchange for the policy goal of diversity. Powell explained: “Denial of a future employment opportunity is not as intrusive as loss of an existing job.”

A year later, the Court in United States v. Paradise (1987) considered whether substantial evidence of past discrimination in the Alabama Department of Public Safety warranted a court order that the Department promote one black trooper for each white trooper elevated in rank, as long as qualified black candidates were available, until such time as the Department implemented a non-discriminatory promotion procedure. The District Court had found that “[i]n the thirty-seven-year history of the patrol, there has never been a black trooper, and the only Negroes ever employed by the department have been nonmerit system laborers . . . . Under such circumstances . . . the courts have the authority and the duty not only to order an end to discriminatory practices, but also to correct and eliminate the present effects of past discrimination.”

The Supreme Court in a 5-4 decision held that under these circumstances the district court had acted appropriately. In a four-Justice plurality opinion, Justice Brennan explained that the one-for-one requirement—while necessary to eliminate the effects of the Department's long-term, open, and pervasive discrimination—was also “temporary and limited in nature” and, as such, narrowly tailored. Justice O’Connor, joined by justices Rehnquist and Scalia, dissented, arguing that the Court had previously held that the effects of past discrimination have no bearing on the standard to be applied when a Fourteenth Amendment violation is in play and that a one-for-one requirement was not narrowly tailored since it bore little relationship to the percentage of blacks eligible for promotions and was far more than needed to work towards the agreed-upon 25% black representation goal.

Affirmative Action in Higher Education
In 1973, the Court granted certiorari to what was to be the first affirmative action case heard by the Supreme Court in the context of education. In DeFunis v. Odegaard (1974), a white law school applicant to the University of Washington Law School who was denied admission sued arguing that he had been denied his Fourteenth Amendment right to equal protection because the school gave significant weight to race in its admissions process. In a 5-4 decision, however, the Supreme Court refused to reach the merits of the case, holding that since the student had been admitted to the school by order of the district court and would be permitted to finish his schooling whatever the Court’s ruling, the case was moot. Only Justice Douglas’s dissent reached the merits of the case and would have held that the Washington Law School admissions policy likely went too far since it did not consider each applicant as an individual but permitted race alone to be a deciding factor. Justice Douglas would have remanded the case for additional fact-finding.

BAKKE
Four years later, the Court as a whole would reach the merits in a nearly identical case, Regents of the University of California v. Bakke (1978). In Bakke, a white 33-year-old student applying to medical school at the University of California at Davis sued when he was rejected, arguing that the medical school set aside 16 of its 100 seats for minority students in violation of the 14th Amendment's Equal Protection Clause. The Court in a 5-4 decision held that such racial quotas or set-asides were invalid. It ordered that since the school could not prove that Bakke would not have been admitted in the absence of the racial set-aside program, they must admit him. The Bakke Court, however, failed to achieve a majority as to the rationale for its decision, and Justice Powell, adopting the most narrow position, authored the controlling opinion. Powell argued that while the goal of achieving a diverse student body is a sufficiently compelling interest to justify consideration of race in admissions, racial set-aside programs, which made race alone a decisive factor in admissions, were not precisely tailored to achieve that interest. Rather, race was but one factor among many that produces a diverse student body. Rather than being a decisive factor, then, race may only be considered as a "plus" factor. Powell offered the example of the admissions policy of Harvard College, in which race was considered as but one factor among many:

In such an admissions program, race or ethnic background may be deemed a "plus" in a particular applicant's file, yet it does not insulate the individual from comparison with all other candidates for the available seats. The file of a particular black applicant may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism. Such qualities could include exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important. In short, an admissions program operated in this way is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight. Indeed, the weight attributed to a particular quality may vary from year to year depending upon the "mix" both of the student body and the applicants for the incoming class. This kind of program treats each applicant as an individual in the admissions process. The applicant who loses out on the last available seat to another candidate receiving a "plus" on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname. It would mean only that his combined qualifications, which may have included similar nonobjective factors, did not outweigh those of the other applicant. His qualifications would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment under the Fourteenth Amendment.

GRUTTER
Twenty-five years later in Grutter v. Bollinger (2003) the court considered the admissions policy of the University of Michigan Law School, which took race into account as one factor among many in its admissions process. In a 5-4 decision authored by Justice O'Connor the Court held that the law school's admission policy was constitutional because it required a "highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment." Justice O'Connor further noted:

We also find that, like the Harvard plan Justice Powell referenced in Bakke, the Law School’s race-conscious admissions program adequately ensures that all factors that may contribute to student body diversity are meaningfully considered alongside race in admissions decisions. With respect to the use of race itself, all underrepresented minority students admitted by the Law School have been deemed qualified. By virtue of our Nation’s struggle with racial inequality, such students are both likely to have experiences of particular importance to the Law School’s mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences.

The Law School in Grutter claimed that what it sought to achieve with its affirmative action program was a "critical mass of underrepresented minority students." This, they argued, would encourage underrepresented minority students to participate in the classroom and not feel isolated or like they are the spokespersons for their race. With a “critical mass,” the school argued, racial stereotypes lose their force because nonminority students would learn there is no “minority viewpoint,” but rather a variety of viewpoints among minority students. The O'Connor majority accepted this as a compelling interest.

The majority in Grutter also issued an unusual statement in its opinion, stating:

It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

Many believe that the Grutter majority stamped its opinion with an expiration date. Others believe it was merely a hopeful remark to be validated or not by a future Court.

Justice Kennedy dissented in Grutter because he believed that the Court had failed to appropriately apply its strict scrutiny jurisprudence. However, he made clear that he did support some consideration of race in higher education admissions. Justice Kennedy explained:

[T]o be constitutional, a university’s compelling interest in a diverse student body must be achieved by a system where individual assessment is safeguarded through the entire process. There is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity, but an educational institution must ensure, through sufficient procedures, that each applicant receives individual consideration and that race does not become a predominant factor in the admissions decisionmaking.

Justice Kennedy's chief concern with the University of Michigan's law school admissions policy was the lack of such documentation. Justice Scalia and Justice Thomas each authored dissenting opinions arguing that racial preferences were never justified.

GRATZ
In a companion case, Gratz v. Bollinger, decided on the same day as Grutter, the Court struck down the University of Michigan's undergraduate admissions policy, which awarded minorities an automatic 20 points by virtue of their race out of a total 100 points needed to pass the admissions threshold. The Court in Gratz held that this automatic set-aside of points was impermissible since it did not consider each applicant as an individual on their own merits, but rather distributed benefits automatically based on mere membership in a particular group. Therefore, the distinction between an affirmative action program that focuses on a more holistic review looking to many factors on an individualized basis and a program that considers race alone to award a decisive and automatic benefit is an important distinction in the legality of affirmative action programs.

PARENTS INVOLVED
Four years later the Court in Parents Involved in Community Schools v. Seattle School District No. 1 considered an affirmative action policy at the high-school level. Seattle School District No. 1 operated ten high schools, some of which were more popular than others. If too many students listed the same school as their first choice, the district employed a series of “tiebreakers” to determine who would fill the open slots at the oversubscribed school. The tiebreakers were applied in the following order: (1) if one of the students had a sibling currently enrolled in the chosen school then they would be chosen; if not, then (2) if the racial composition of the oversubscribed school was not within 10 percentage points of the district’s overall white/nonwhite racial balance (41% white, 59% nonwhite), then the tiebreaker would select the student whose race “will serve to bring the school into balance;” if a choice still remains, then (3) the student who lives in closest proximity to the school would be chosen. An organization of Seattle parents sought to challenge the use of race in the tiebreakers.

In a 5-4 decision, the Court held that the Seattle School District had engaged in an impermissible use of race in violation of the petitioners’ equal protection rights. The majority opinion authored by Chief Justice Roberts held that Grutter did not apply to elementary and secondary schools because of the differences inherent to “the university environment.” Justice Kennedy, however, refused to join other portions of Chief Justice Roberts’s opinion, converting it to a plurality in parts.

Chief Justice Roberts, joined by Scalia, Thomas and Alito in plurality held that using racial balancing by seeking to mirror demographics is never a sufficiently compelling state interest. Chief Justice Roberts explained: “Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that ‘[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.’” Chief Justice Roberts ended his opinion writing: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Justice Kennedy in concurrence reasserted his belief that while it is permissible for public schools to consider racial makeup and adopt general policies to encourage a diverse student body, one aspect of which is its racial composition, the government must meet the narrow tailoring requirement by establishing, in detail, how decisions based on an individual student’s race are made in a challenged program. Justice Kennedy continued that while the Seattle school district had detailed its program, it had failed to explain why it divided students into the “crude racial categories of ‘white’ and ‘non-white’” when the district is composed of a variety of races “with fewer than half of the students classified as ‘white.’”

FISHER
On February 21, 2012, the Supreme Court granted review to Fisher v. University of Texas at Austin, in which the Court,  for the first time since Grutter, reexamined the continuing validity of affirmative action programs in university admissions.

The petitioner, Abigail Fisher, a white Texas resident who was denied admission to the University of Texas at Austin, sought reimbursement of her application fee, among other damages, for being subject to a race conscious admissions process. She argued that it was not necessary to overrule Grutter because the University of Texas has already achieved a critical mass of underrepresented minorities and, therefore, could no longer justify their affirmative action program.  

The state of Texas is one of only three states, and the first one to do so, that offers guaranteed admission to its state universities for those who graduate in the top 10% of their high school class. The other two states are Florida, which offers guaranteed admission to the top 20%, and California, which offers admission to the top 4%. The Texas Top 10% Program, instituted in 1997, resulted in a surge of minority enrollment in the university system because more students at majority black and Hispanic schools now qualified for enrollment. The program was instituted one year after the Fifth Circuit decision in Hopwood v. Texas, which prohibited the consideration of race in school admissions in the three states covered by the 5th Circuit - Texas, Mississippi and Louisiana. From 1997 through 2003, the Top 10% Program was the only program instituted by the Texas university system that resulted in higher minority enrollment. The 5th Circuit's decision in Hopwood, however, was overridden when the Supreme Court, in 2003, decided Grutter v. Bollinger.

The same day the decision was handed down in Grutter, the University of Texas at Austin decided to reinstitute an affirmative action program for those students not admitted under the Top 10% Program, citing a report the school believed showed that the school had yet to achieve a "critical mass of underrepresented minorities." The report concluded that many of UT Austin's classes had zero or only one African-American enrolled and minorities complained of feeling isolated on campus. The university claims that the affirmative action program it instituted consisted of a holistic review patterned after the program the Court approved in Grutter, in which race was considered as one of many factors of diversity.

Abagail Fisher applied for admission for the fall of 2008 incoming class. She had a combined SAT score of 1180 out of 1600 and a cumulative 3.59 GPA. Since she was not in the top 10% of her high school class, her application was considered under the holistic review process and was rejected. Because the school did not award any numerical value to race, it claimed that it was impossible to tell what role race played, if any, in Fisher’s rejection. The school claimed, however, that due to the stiff competition in 2008 and Fisher's lower grades and test scores, she would not have been admitted even if the affirmative action program did not exist.

In her brief, Abigail Fisher claimed that UT used Texas demographics to determine the efficacy of its affirmative action program and that this constituted unconstitutional racial balancing. The percentage of African-Americans and Hispanics at UT is roughly half what it is in Texas. UT argues that providing a diverse student body, and not mirroring the state population, is its goal, but nonetheless some attention to state population numbers is unavoidable in determining whether a state school that draws nearly 90% of its students from the state is under-representing minorities.

Fisher further took UT to task for claiming to be attempting to achieve a diverse student body but adopting an admissions policy that “gives no admissions preference to Asian Americans even though the gross number of Hispanic students attending UT ‘exceeds the gross number of Asian-American students attending UT.’" UT responded, however, that the law is concerned with underrepresented minority students and Asian-Americans comprise about 3% of the population of Texas, yet accounted for 19% of the freshmen class at UT in 2008 and for years have gained admission to UT at higher rates than any other group, including Caucasians.

Fisher also argued that UT did not provide factual evidence that it cannot enroll a "critical mass" of minority students without using race-conscious admissions. Fisher pointed out that the race-neutral Top 10% Program had already made UT one of the most diverse public universities in the nation even before UT adopted race-based admissions criteria. According to Fisher, this also showed that UT's policy is not narrowly tailored, considering the effectiveness of the race-neutral Top 10% Plan. UT argues that while the 10% law has increased minority enrollment it did so largely as a result of de facto segregation throughout much of Texas's secondary school system, such that many of the minorities admitted under the 10% law come from overwhelmingly majority black and Hispanic schools. This, they argued, hinders their holistic review and their efforts to assemble a class that is broadly diverse. They claimed that their affirmative action policy permited them to consider diversity within racial groups, such as ensuring that minorities from various socio-economic groups are admitted. UT points to admissions data showing that "African-American and Hispanic students admitted through holistic review are, on average, more likely than their top 10% counterparts to have attended an integrated high school; are less likely to be the first in their families to attend college; tend to have more varied socioeconomic backgrounds; and, on average, have higher sat scores than their top-10% counterparts."

Fisher next argued that UT's race-based policy had a very small impact on the student body as a whole, and a minimal increase in diversity cannot justify the heavy cost of using racial classifications. In 2008, for instance, of the incoming class of 6,715 students, 6,322 came from Texas schools, of which 363 were African-American, and of those, only 58 were not admitted as part of the Top 10% Program. Since UT does not keep data on which students benefited from affirmative action in admissions, there is no way to know how many of these 58 students would not have been admitted but for the use of race as a plus factor. However, assuming all of the 58 students were admitted pursuant to UT's affirmative action policy, they would still have only accounted for 0.92% of the 6,322 Texas high school students in the 2008 freshmen class. UT responded, however, that this minimal impact is, in fact, evidence of how narrowly tailored its affirmative actions admissions policy is.

In short, Fisher argued that because the University cannot prove that its interest is compelling, that it has not already attained a critical mass of minority students, or that its methods are narrowly tailored, UT's race-based policy fails the strict scrutiny test and violates the Fourteenth Amendment’s Equal Protection Clause. The university countered that its individualized and holistic consideration of applicants, using race not as a determinative factor but one of many factors, is permissible under Bakke and Grutter.

The Fifth Circuit held that Ms. Fisher could challenge only “whether [the University’s] decision to reintroduce race as a factor in admissions was made in good faith,” since the court would “presume the University acted in good faith” and place on petitioner the burden of rebutting that presumption. The Fifth Circuit argued that deference was due the university because the court was “ill equipped” to assess the merits and efficacy of university admissions programs. It further noted that Fisher could not prevail "as long as Grutter remains good law." Some believed that the primary significance of the Fisher case was to determine whether the Supreme Court still supports Grutter in full or whether it believes it should be limited or overruled.

On June 24, 2013, the Supreme Court issued its decision in Fisher. In a surprising 7-1 decision (with Justice Kagan recused and only Justice Ginsburg dissenting), the majority opinion issued by Justice Kennedy took the Fifth Circuit to task for failing to apply strict scrutiny to the case.  Justice Kennedy began his analysis by noting that three prior precedents directly govern the result in this case – Bakke, Gratz and Grutter. From Bakke, Justice Kennedy noted that a racial classification must overcome the strict scrutiny test whether it is a program that helps or hurts minorities. That is so he stated because the principle of equal protection set forth in the Fourteenth Amendment is not limited to a particular type of racial discrimination. Next, also from Bakke, Justice Kennedy noted that the first prong of the strict scrutiny test – a compelling governmental interest – is satisfied by an interest of a university in “the educational benefits that flow from a diverse student body.” Redressing past discrimination, however, is not a compelling interest for a university, because a university is not in the business of making legislative, judicial or administrative policy. On the other hand, Justice Kennedy reasons: “The attainment of a diverse student body, by contrast, serves values beyond race alone, including enhanced classroom dialogue and the lessening of racial isolation and stereotypes.”

Justice Kennedy then turned to Gratz and Grutter which he pointed out largely echoed Bakke but added an important precondition and that is that an admission process using race as a factor in admissions is subject to judicial review and the university bears the burden of proving that its admissions program withstands strict scrutiny. And while under Grutter a university is due deference in its conclusion, “‘based on its experience and expertise’” that diversity is a compelling interest, Justice Kennedy’s majority held that the university is due no deference on the second prong of the strict scrutiny test as to whether the means chosen by the University to attain diversity are narrowly tailored to that goal – rather, narrow tailoring is an issue for the Court to decide. Indeed, Fisher boiled down to its core – its black letter law – is that the narrow tailoring prong of the strict scrutiny test as applied to a race conscious university admissions program must be assessed by a Court without giving any deference to the university. And it is there, Justice Kennedy concludes, that the Fifth Circuit failed. The Fifth Circuit argued that deference was due the university because the court was “ill equipped” to assess the merits and efficacy of university admissions programs, but Justice Kennedy responds that it is the duty of the Court to make a more searching examination.

Because Fisher was decided at the summary judgment stage Justice Kennedy instructed that on remand the duty of the Fifth Circuit is: “ [to] 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.” Justice Kennedy, ends by noting that strict scrutiny although a strict test must not be applied so as to be ‘strict in theory, but fatal in fact,’” - that is, to always lead to a loss for the party trying to overcome the standard. Yet, Justice Kennedy also noted that: “The opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact.” That is, a Court may not permit a party to overcome strict scrutiny without a strong factual presentation as to why its proposed solution is a necessary one. Accordingly, the Court remanded the case to the Fifth Circuit to reconsider the case under the guidance of Justice Kennedy’s opinion.

Justice Scalia issued a separate concurrence consisting of three sentences, in which he noted that he would overrule Grutter, but that Fisher did not ask the Court to do so and, therefore, he had no reservations in joining the majority opinion.

Justice Thomas issued a separate concurring opinion in which he expressed the same sentiment that Justice Scalia did, that he would overrule Grutter, but he did so in a 20 page opinion, the longest of the opinions issued in the Fisher. Justice Thomas begins by setting forth his controversial thesis: that those peddling affirmative action programs are no different than segregationists of the past who attempted to justify segregation,  only as Justice Thomas states “segregationists argued that it was segregation that was necessary to obtain the alleged benefits, whereas the University argues that diversity is the key.” Justice Thomas proceeds to support his argument by way of example. He begins with an argument that the University asserts that the diversity obtained through its admissions program prepares its students to become leaders in a diverse society. Justice Thomas responds: “The segregationists likewise defended segregation on the ground that it provided more leadership opportunities for blacks,” pointing to segregationist arguments that blacks would have more leadership opportunities in segregated schools and would feel more secure among their own. Justice Thomas noted: “Indeed, no court today would accept the suggestion that segregation is permissible because historically black colleges produced Booker T. Washington, Thurgood Marshall, Martin Luther King, Jr., and other prominent leaders.” Justice Thomas next addresses the argument that student body diversity improves cross-racial understanding. Thomas again points to segregationist propaganda that argued that segregated schools improved relations among the races by reducing race violence and resentment between students. Finally, Justice Thomas addresses the University’s argument that while racial discrimination in admissions is not ideal, it is a temporary necessity because of the enduring race consciousness of our society. Again, Justice Thomas pointed to segregationist rhetoric that argued that segregated schools may be regrettable and unjustified, but were needed at the time in order to preserve harmony and peace and at the same time furnish equal education to both groups. Accordingly, Justice Thomas argues: “The University’s arguments today are no more persuasive than they were 60 years ago.”

Justice Thomas, further refers to affirmative action as a mere fad and warns: “The Constitution does not pander to faddish theories about whether race mixing is in the public interest.” Rather, he notes, “The Equal Protection Clause strips States of all authority to use race as a factor in providing education. All applicants must be treated equally under the law, and no benefit in the eye of the beholder can justify racial discrimination.” Justice Thomas points to a 1868 case of the Iowa Supreme Court that predated even Plessy v. Ferguson by decades, which held that schools may not discriminate against applicants based on their skin color and admonished a school that had denied admission to a student because she was black.  Justice Thomas noted that the Iowa Supreme Court rejected the school’s flimsy justification, holding that:

[A]ll the youths are equal before the law, and there is no discretion vested in the board . . . or elsewhere, to interfere with or disturb that equality. For the courts to sustain a board of school directors . . . in limiting the rights and privileges of persons by reason of their [race], would be to sanction a plain violation of the spirit of our laws not only, but would tend to perpetuate the national differences of our people and stimulate a constant strife, if not a war of races.

Justice Thomas opines:

I suspect that the University’s program is instead based on the benighted notion that it is possible to tell when discrimination helps, rather than hurts, racial minorities. But “[h]istory should teach greater humility.” The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities. Slaveholders argued that slavery was a “positive good” that civilized blacks and elevated them in every dimension of life. A century later, segregationists similarly asserted that segregation was not only benign, but good for black students. [And] Following in these inauspicious footsteps, the University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign.

Finally, Justice Thomas, argues that affirmative action programs hurt most those they attempt to help. He argues:

There can be no doubt that the University’s discrimination injures white and Asian applicants who are denied admission because of their race. But I believe the injury to those admitted under the University’s discriminatory admissions program is even more harmful. Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates. In the University’s entering class of 2009, for example, among the students admitted outside the Top Ten Percent plan, blacks scored at the 52d percentile of 2009 SAT takers nationwide, while Asians scored at the 93d percentile. Blacks had a mean GPA of 2.57 and a mean SAT score of 1524; Hispanics had a mean GPA of 2.83 and a mean SAT score of 1794; whites had a mean GPA of 3.04 and a mean SAT score of 1914; and Asians had a mean GPA of 3.07 and a mean SAT score of 1991. Tellingly, neither the University nor any of the 73 amici briefs in support of racial discrimination has presented a shred of evidence that black and Hispanic students are able to close this substantial gap during their time at the University. . . . Furthermore, the University’s discrimination does nothing to increase the number of blacks and Hispanics who have access to a college education generally. . . . The University admits minorities who otherwise would have attended less selective colleges where they would have been more evenly matched. But, as a result of the mismatching, many blacks and Hispanics who likely would have excelled at less elite schools are placed in a position where underperformance is all but inevitable because they are less academically prepared than the white and Asian students with whom they must compete. Setting aside the damage wreaked upon the self-confidence of these overmatched students, there is no evidence that they learn more at the University than they would have learned at other schools for which they were better prepared. Indeed, they may learn less. . . . There is some evidence that students admitted as a result of racial discrimination are more likely to abandon their initial aspirations to become scientists and engineers than are students with similar qualifications who attend less selective schools. These students may well drift towards less competitive majors because the mismatch caused by racial discrimination in admissions makes it difficult for them to compete in more rigorous majors. Moreover, the University’s discrimination “stamp[s] [blacks and Hispanics] with a badge of inferiority.” It taints the accomplishments of all those who are admitted as a result of racial discrimination. . . . When blacks [and Hispanics] take positions in the highest places of government, industry, or academia, it is an open question . . . whether their skin color played a part in their advancement.” “The question itself is the stigma—because either racial discrimination did play a role, in which case the person may be deemed ‘otherwise unqualified,’ or it did not, in which case asking the question itself unfairly marks those . . . who would succeed without discrimination."

Accordingly, Justice Thomas, concludes, “Although cloaked in good intentions, the University’s racial tinkering harms the very people it claims to be helping [so] I would overrule Grutter.”

Justice Ginsburg filed the only dissenting opinion, a short four-page opinion, in which she argued that the University of Texas at Austin was candid in its endeavor to pattern its admission program after the programs approved by the Court in Bakke and Grutter and that the Court was kidding itself in calling the Top Ten Percent program race neutral.  Rather, she states the Top Ten Percent program was passed specifically to increase minority enrollment and that all the Court achieves in promoting such "'deliberately obfuscated'" attempts at concealing one’s true purpose is to create less effectual affirmative action programs. Justice Ginsburg notes that the notion that Texas’ Top Ten Percent Law is race neutral calls to mind Professor Thomas Reed Powell’s famous statement: “If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.” Justice Ginsburg continues: “Only that kind of legal mind could conclude that an admissions plan specifically designed to produce racial diversity is not race conscious.” Justice Ginsburg concludes: “[G]overnment actors, including state universities, need not be blind to the lingering effects of 'an overtly discriminatory past,' [and] the legacy of 'centuries of law-sanctioned inequality.' I remain convinced, [that] 'those that candidly disclose their consideration of race [are] preferable to those that conceal it.'”

In footnotes to her opinion, Justice Ginsburg points to prior dissenting and concurring opinions of hers in which she sets forth her long held belief that different standards of review should apply to programs that burden historically discriminated against minorities as opposed to programs that benefit those minorities.

While it was clear from the Court’s decision in Fisher and Parent Involved that a majority does not yet exist to overrule Grutter, it is clear that a majority does exist who has serious reservations about it. As such, affirmative action programs will face increased scrutiny in the days and years to come.