In yesterday’s long-awaited Fisher v. The University of Texas ruling, the U.S. Supreme Court neither banned nor affirmed the use of race in university admissions. Instead it sent the case back to a lower court. With both sides calling the decision a victory, where do we go from here? We asked Harvard Law School professor Lani Guinier, who studies constitutional law and race, to break it down.
In plain English, what did the Supreme Court do?
They sent the case back to a lower court, and they said to that court, you need to use a stricter standard next time. While it didn’t change the law, the decision did introduce a new, more demanding set of rules for evaluating university admissions protocols and the use of race. The key term to understand is “strict scrutiny,” which means that the University must prove that the use of race in admissions is the best way to achieve diversity. Previously in this case, lower courts relied on UT’s “good faith” presentation of itself without demanding proof. Now they may have to prove that other alternatives, like the Top 10 Percent rule, don’t work as well.
The term “narrowly tailored” is also coming up a lot. What does it mean?
What this ruling says is that UT must show that its use of race in admissions is “narrowly tailored” to the goal of a diverse student body. Essentially, that means proving that the use of race is the least restrictive way to get to that goal.
The part of Justice Kennedy’s opinion that people are calling the “money quote” is this: “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”
That’s right. So this imposes on the University the burden of demonstrating that no other method is going to work as well as consideration of race.
What’s the significance of the ruling for UT?
Well, it could mean the University has to spend a lot more money on lawyers [laughs]. For all universities, it means they may have to defend their admissions programs more specifically. And I do think that for the University of Texas in particular, a school that has as its mission to train diverse leaders for the state of Texas, and given the changing demographics of Texas, this issue is never going to go away, and it will always be a challenge one way or another.
The Supreme Court could have ruled one way or the other on this issue—either banning the use of race in admissions or permitting it. Why not just decide once and for all, instead of sending it back to a lower court?
Because the justices believed they didn’t have enough evidence. What Justice Kennedy’s majority opinion critiques is that the lower courts relied on UT’s presentation of itself without demanding proof under oath. So now if this case continues, UT is going to have to produce information supporting the argument that using race in admissions works better than the other so-called race-neutral methods.
The court’s decision yesterday was relatively straightforward. So why did it take them so long [eight months] to decide?
I really don’t know, and we may never know. But some people are speculating that they were bargaining with each other. It’s a surprise that Justices Breyer and Sotomayor signed onto the majority opinion with Justice Kennedy, because they have been supportive of affirmative action in the past. It does feel like a compromise. Supporters of affirmative action can be pleased because this ruling doesn’t necessarily restrict or ban the use of race in admissions, and opponents can also be pleased because they know that the courts are going to take a very tough look at these programs.
Editor’s Note: The Texas Exes takes no position on the use of race in admissions. Photo by Envios on Flickr.