by Vinay Harpalani, J.D., Ph.D, Associate Professor of Law, Savannah Law School
Thursday’s decision in Fisher v. Texas II came down exactly 13 years to the day after the U.S. Supreme Court’s 2003 ruling in Grutter v. Bollinger—which created the basic legal framework for affirmative action in university admissions. And more than eight years after Abigail Fisher filed her lawsuit against the University of Texas at Austin (UT), alleging that its race-conscious admissions policy was unconstitutional, the case is finally over—she lost. Fisher was truly a fishing expedition: a weak case that went to the Supreme Court once before, only to be remanded to the Fifth Circuit and then reargued before the Court. The one issue that Justice Anthony Kennedy’s majority opinion and Justice Samuel Alito’s dissent agreed upon was that there was no need for another remand. While both Justices brought up that possibility during oral arguments in December, everyone now thought that it was time to end this fishing expedition.
Justice Kennedy’s majority opinion affirming UT’s use of race was surprising. He had never before voted to allow a race-conscious policy, and he dissented in Grutter, which upheld the University of Michigan Law School’s holistic admissions plan. I expected him to strike down UT’s plan on narrow grounds, and even in the event of an affirmance, I would have expected a ruling that further narrowed the scope of race-conscious university admissions. But Justice Kennedy’s majority opinion did not do that. It pretty much affirmed the current Grutter-Fisher I framework for race-conscious university admissions.
In fact, the ruling today really helps universities—it gives them a more detailed blueprint on how to justify their race-conscious admissions policies. The Court’s Fisher I decision in 2013 made it clear that in order to meet strict scrutiny, a university must demonstrate that its use of race is necessary: that no “workable race-neutral alternatives” would achieve the same educational benefits of diversity. However, Fisher I did not give further guidance on how universities should do this: it merely remanded the case for proper application of this standard.