Affirmative action's neck is in a noose

Last Monday, the Supreme Court decided this term's major affirmative action case, Fisher v. the University of Texas. It was a much anticipated ruling that some had expected and feared would reverse decades of affirmative action policy.

When the court's ruling didn't go that far, the collective, though inaccurate, sigh of relief from liberals was audible from coast to coast. The Huffington Post's headline was, "Supremes Punt on Affirmative Action." Politico trumpeted, "SCOTUS Passes on Affirmative Action." Harvard law professor Cass Sunstein's analysis was titled, "Judicial Minimalism Triumphs in Affirmative Action Case."

God bless them one and all. They got it wrong!

The case in question was a challenge to the University of Texas' use of race with respect to undergraduate admissions. Abigail Fisher, a white woman, applied for admission but was rejected. She then sued, arguing that she had been a victim of racial discrimination because minority students with inferior credentials had won admission to the university. Her claim asserts that the racial discrimination she alleges is a violation of the Equal Protection Clause of the 14th Amendment to the Constitution.

Both the federal district court and the 5th Circuit of the U.S. Court of Appeals ruled in favor of the university and against Ms. Fisher.

To put this decision in perspective, we need to look back to 2003 when the Supreme Court issued a landmark affirmative action ruling in the case of Grutter v. Bollinger, a case involving the University of Michigan Law School. Grutter was a 5-4 decision in which Justice Sandra Day O'Connor wrote the majority opinion.

The court ruled that the use of affirmative action is constitutional if it includes race among multiple factors for the purpose of achieving a diverse student body. It also ruled that it would be unconstitutional if the university's admissions process advantaged one student over another based upon race alone.

Writing for the majority, Justice O'Connor found that the law school's admissions process was "narrowly tailored" and therefore permissible because it did not rely solely upon race or a racial quota system.

In Grutter, the high court reaffirmed the necessity for using the strict scrutiny standard of judicial review in cases involving race and the 14th Amendment. Strict scrutiny is the most restrictive form of judicial review. Strict scrutiny presumes the law or policy to be unconstitutional, and thus the state must prove its constitutionality. If proven, the state must then show that its approach is narrowly tailored to meet the intended result.

In deciding the Texas case last week, the Supreme Court not only reaffirmed the use of the strict scrutiny standard, it used that standard to overturn the decisions of lower courts that had ruled in favor of the University of Texas. In so doing, the high court raised the bar significantly for the University of Texas, and potentially many others.

Writing on SCOTUSblog.com at the time of oral arguments before the Supreme Court last fall, Amy Howe stated that "even if the core of Grutter survives, so that universities can still consider race as one factor in their admissions programs, the court is likely to put some real teeth into the limits on when and how it can do so."

She turns out to be a prophet because the court has now ruled that race can only be used to achieve a diverse student body when there is no other realistic alternative.

Lyle Denniston, also writing on SCOTUSblog.com, elaborates this same key part of the court's ruling. He argues that the court's decision has partly walked away from the part of Grutter that was willing to allow courts to defer to the "good faith" of academic administrators that there is an educational benefit in using race as one factor in admitting students.

Instead, the Supreme Court has now required the lower court to use a two-step method that will first look at the university's good-faith basis for using race as a factor in admissions. But then the university will have to demonstrate that there is no nonracial alternative to achieving a diverse student body. If there is a nonracial alternative that is workable, then race can't be used.

And there's more. In an unusual footnote in Grutter in 2003, Justice O'Connor wrote, "We expect that 25 years from now, the use of racial preferences will no longer be necessary ... ." Three years later, in November 2006, the voters of Michigan decided to advance her timetable. They voted 58 percent to 42 percent to approve a statewide ballot measure that banned affirmative action in Michigan.

A group called the Coalition to Defend Affirmative Action sued, and the 6th Circuit Court of Appeals ruled that, with respect to higher education, the ban violated the Equal Protection Clause of the 14th Amendment. The case, known as Schuette v. Coalition to Defend Affirmative Action, has now been taken up by the Supreme Court and will be decided next year.

The Supreme Court's forthcoming ruling in the Michigan case may be a blockbuster because, unlike the Texas case, it "directly tests whether the Constitution's guarantee of equality bars a state from adopting a flat ban on the use of race in public policy," according to Denniston on SCOTUSblog.

Recent polling shows that 76 percent of Americans oppose race-based college admissions. Don't be surprised if next year the Supreme Court closes Justice O'Connor's 25-year window 14 years early.

The Shadow's oiling the trapdoor on the gallows, but Goldman can be reached at: EmailMe