This morning, in a 4-3 decision the Supreme Court sided with the University of Texas, in the Fisher v. University of Texas case.
So first, the good news. The court upheld that the race-conscious admissions program in place at UT, was lawful under the Equal Protection Clause, and similar to the Grutter v. Bollinger case in 2003 held that universities may consider race in admissions because racial diversity benefits the student body.
“Enrolling a diverse student body ‘promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races,’” Kennedy explains. “Equally important, ‘student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.’”
Now for the bad news, the decision also imposes a tough burdens on universities that have (or would like to have) similar affirmative action policies:
“Because racial characteristics so seldom provide a relevant basis for disparate treatment,” Kennedy explains, “race may not be considered [by a university] unless the admissions process can withstand” the highest level of constitutional scrutiny. In practice, that means that “through regular evaluation of data and consideration of student experience, the University must tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest.” An admissions policy that survives review today may no longer pass Kennedy’s test tomorrow.
Kennedy also emphasizes just how many hoops Texas jumped through in order to produce an acceptable plan. The University of Texas “conducted ‘months of study and deliberation, including retreats, interviews, [and] review of data.’” This review culminated in a “39-page proposal” that “was written following a year-long study, which concluded that ‘[t]he use of race-neutral policies and programs ha[d] not been successful’ in ‘provid[ing] an educational setting that fosters cross-racial understanding, provid[ing] enlightened discussion and learning, [or] prepar[ing] students to function in an increasingly diverse workforce and society.’”
So, while other universities remain free to implement affirmative action programs after Fisher, they will need to jump through similar hoops. And even if they succeed in doing so, they still have an “ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.” It is easy to imagine how conservative litigators can turn this obligation into an opportunity to harass universities with expensive suits designed to wear down the school’s commitment to affirmative action.
In other news, BlackTwitter is of course having a field day with this news with #BeckyWithTheBadGrades.
