More than nine months after it heard oral arguments, the U.S. Supreme Court finally rendered its opinion in Fisher v. University of Texas. In a surprising 7-1 ruling, with only Justice Ginsburg dissenting, the Court vacated the Fifth Circuit ruling and remanded the case, but it did not declare the University’s admissions policy to be unconstitutional. Rather, it instructed the lower courts to apply strict scrutiny with regard to the key question: whether the University of Texas at Austin needs to use a race-conscious admissions policy, in addition to the Top Ten Percent Law, to achieve the educational benefits of diversity. This is exactly what one of my recent law review articles on the case had recommended, albeit for different reasons.
Make no mistake about it: given the current composition of the Supreme Court, this is the best realistic outcome for proponents of affirmative action (I consider myself to be a strong one). Otherwise, Justices Breyer and Sotomayor, both of whom support race-conscious admissions policies, would not have voted with the majority. The Supreme Court’s opinion in Fisher pretty much leaves the framework of Grutter v. Bollinger place. The only change is that the language of “good faith” in Grutter is more restricted, and the meaning of this language was already ambiguous.
In Fisher, the Court states:
[t]he reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity … [and] … [i]f “‘a nonracial approach … could promote the substantial interest about as well and at tolerable administrative expense’” … then the university may not consider race.