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Supreme Court Affirmative Action Decision

Supreme Court Affirmative Action Decision

[Note — More decisions will be released Tuesday — check back here at 10 a.m.]

Full opinion embedded at bottom of post

Via ScotusBlog live blog:

10:14 Amy Howe: The opoinion by Kennedy. The Fifth Circuit is vacated and remanded.

10:15 Amy Howe: The holding is because the Fifth Circuit did not hold the university to the demanding burden of strict scrutiny articulated in Grutter and Bakke, its decision afffiming the district court’s grant of summary judgment was incorrect.

10:16 Amy Howe: There is one dissent. It is 7-1. Ginsburg dissents alone.

10:16 Amy Howe: There are separate concurring opinions by Scalia and Thomas. Kagan was recused.

10:17 Amy Howe: The dissent is only four pages.

10:17 Amy Howe: Justice Thomas says he would overrule Grutter.

10:18 Amy Howe: Justice Scalia’s concurrence is very brief. He says because the petitioner did not ask the Court to overrule Grutter, he joins the opinion of the Court in full.

10:18 Kali: Here is the opinion in Fisher:

10:20 Amy Howe: The majority seems to reaffirm that diversity is a compelling interest if only because that rule was not challenged by the plaintiffs in the case.

10:24 Amy Howe: Here’s the money quote: “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”

Quick take:

Nothing much has changed. The Court did not address the underlying issue of whether “educational benefits of diversity” continue to serve as a justification for race-based admissions decisions.

Majority Opinion (Kennedy) intro:

The parties asked the Court to review whether thejudgment below was consistent with “this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, 539 U. S. 306 (2003).” Pet. for Cert. i. The Court concludes that the Court of Appeals did not hold the Universityto the demanding burden of strict scrutiny articulatedin Grutter and Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 305 (1978) (opinion of Powell, J.). Because the Court of Appeals did not apply the correct standard of strict scrutiny, its decision affirming the District Court’s grant of summary judgment to the University was incorrect.That decision is vacated, and the case is remanded for further proceedings.

Scalia Concurrance (in full):

I adhere to the view I expressed in Grutter v. Bollinger: “The Constitution proscribes government discrimination on the basis of race, and state-provided education is noexception.” 539 U. S. 306, 349 (2003) (opinion concurringin part and dissenting in part). The petitioner in this case did not ask us to overrule Grutter’s holding that a “compelling interest” in the educational benefits of diversity canjustify racial preferences in university admissions. Tr. of Oral Arg. 8–9. I therefore join the Court’s opinion in full.

Thomas concurrence (1st paragraph only):

I join the Court’s opinion because I agree that the Court of Appeals did not apply strict scrutiny to the Universityof Texas at Austin’s (University) use of racial discrimination in admissions decisions. Ante, at 1. I write separately to explain that I would overrule Grutter v. Bollinger, 539 U. S. 306 (2003), and hold that a State’s use of race inhigher education admissions decisions is categorically prohibited by the Equal Protection Clause.

Thomas went on to challenge the underlying issue:

Unfortunately for the University, the educational benefits flowing from student body diversity—assuming theyexist—hardly qualify as a compelling state interest. In deed, the argument that educational benefits justify racialdiscrimination was advanced in support of racial segregation in the 1950’s, but emphatically rejected by this Court.And just as the alleged educational benefits of segregationwere insufficient to justify racial discrimination then, see Brown v. Board of Education, 347 U. S. 483 (1954), the alleged educational benefits of diversity cannot justify racial discrimination today.

Fisher v U Texas Supreme Court Opinion


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What does the judgement mean?

I do not know the Appeallates court decision *waitsbitingnails*

    Ragspierre in reply to CREinstein. | June 24, 2013 at 11:06 am

    It means the Supremes only considered procedural and very little substantive stuff.

    They kicked it all back to the trial court, effectively, unless the 5th works some magic.

    This is somewhat unusual, as the 5th is fairly seldom reversed.

    The Supremes set a precedent in Grutter, and they are jealous that it be applied.

    I agree with Thomas. There is no excuse for racial discrimination as a matter of law or policy.

      JimMtnViewCaUSA in reply to Ragspierre. | June 24, 2013 at 1:35 pm

      “The Court did not address the underlying issue of whether “educational benefits of diversity” continue to serve as a justification for race-based admissions decisions.”
      Rags is right.
      How can some nebulous, unmeasurable principle like diversity justify cheating innocent people based on the color of their skin?

        Observer in reply to JimMtnViewCaUSA. | June 24, 2013 at 4:43 pm

        “Diversity” is not the only nebulous concept in these opinions. What is “critical mass” and when does a university know it has reached it? When it feels right? When the NAACP or La Raza approve? Or is it like the old obscenity cases, in which the justices couldn’t really define what obscenity consisted of, but they knew it when they saw it (or so they assured us).

        Milhouse in reply to JimMtnViewCaUSA. | June 25, 2013 at 2:52 pm

        Because nobody has a right to be admitted to a university. The university has the right to make whatever rules it likes, and accept or decline applications however it likes, so long as there’s a legitimate educational reason for it. So a university is entitled to say that it values diversity, and considers it vital to have a diverse student body. Now if imposing racial quotas is the best way to achieve that, and is narrowly tailored to achieve only that, then it’s OK. But if there are other ways to achieve the same goal, then they must be used instead.

[…] PROF. JACOBSON ON the Supreme Court’s Affirmative Action decision. […]

“Nothing much has changed. The Court did not address the underlying issue of whether ‘educational benefits of diversity’ continue to serve as a justification for race-based admissions decisions.”

Big surprise. “Diversity”, the new code word for “affirmative action”, will never go away. What a huge crock. Beneficiaries of Grutter probably never even heard of the word, “diversity”, before that opinion and the subsequent (and inevitable) rise of the “Diversity Industry”.

I never expect substantive decisions from SCOTUS any more, especially after Roberts’ opinion upheld PPACA.


“The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”

Does this mean that someone will have to attempt to elucidate the educational benefits of diversity? I have pondered this question for over a decade and haven’t come up with any yet.

stevewhitemd | June 24, 2013 at 11:30 am

I’m not a lawyer or constitutional scholar. As to procedure, can the justices not overrule or overturn a past decision if the plaintiff does not specifically ask them to do so?

Seems like Scalia and Thomas both want to overturn Grutter, but perhaps they’re the only two.

DINORightMarie | June 24, 2013 at 11:33 am

Does this mean that Justice Thomas is, in essence, telling the party to challenge UT Austin’s assertion (which all universities use now, I believe) that racial diversity is somehow beneficial to education? What a great idea!!

(I love that last quite/excerpt from Justice Thomas, btw; So cogent, so rational, so logical!)

Sounds like he is itching to reverse that erroneous prior ruling and get the country back on track to MLK’s dream of a color-blind society.

No wonder lefties can’t stand him – he understands and rightly interprets the Constitution, and he knows what the REAL “civil rights” struggle is all about!

    Good post.

    Hopefully, someday, an honest appraisal of Clarence Thomas will be written and he will be given the credit which he is due.

theduchessofkitty | June 24, 2013 at 12:13 pm

So, nothing changes. Hmm…

Let me make a prediction. As I said last year around this time, I will say it again: I fully expect NOTHING GOOD coming out of this Court this week. Absolutely nothing good.

I share Steve White’s question, Professor. If at some time you could explain why the court must be petitioned specifically to overturn itself, I for one would enjoy the clarity. Seems like a DMV type requirement. And if that is the case, wouldn’t all petitions have a kitchen sink clause seeking to overturn any SC precedent conflicting with the relief sought?

This is a mostly procedural decision that purports to change no rules, but that will set up the next big case — in which Grutter may be overruled outright — in a way that will better ensure Justice Kennedy’s joinder with the four more conservative justices, even if that next case fractures along more traditional 5/4 split lines (with Kagan again participating). Chief Justice Roberts would not have much liked the Court being accused of turning affirmative action law upside-down during a power-play with Kagan recused. And in the meantime, it will indeed be harder for public education institutions to justify using racial preferences.

Short answer re Scalia’s remark about the petitioners not asking for Grutter to be overruled:

He’s just being cute. There are many, many examples of the SCOTUS overruling prior precedent despite the lack of an explicit suggestion that it do so.

If Chief Justice Roberts and Justices Scalia and Alito had agreed with Justice Thomas that now is the time to overrule Grutter, then presumably Justices Breyer and Sotomayor would have joined Justice Ginsburg in dissenting outright, and there would be a new 5/3 precedent overturning and replacing Grutter. But it would have been a ruling whose legitimacy would have been attacked as a conservative “power play” due to Kagan’s non-participation. I think Chief Justice Roberts (who assigned the majority opinion to Justice Kennedy to write) is looking into the middle and long distance, perhaps as soon as next term; for institutional purposes, he’d rather see the blockbuster decided by a clean 5/4 split than a 5/3 one in which one side can claim to have been artificially handicapped.

Meant to say “If Chief Justice Roberts and Justices Scalia, Kennedy, and Alito had all agreed with Justice Thomas that now is the time to overrule Grutter ….”

Let’s be honest. If “educational benefits of diversity” existed, every General Education program would require a full-fledged Diversity course of at least 3 semester units taught by Ph.D.s in Diversity.

[…] A follow up to the Supreme Court’s decision in Fisher v. U. Texas. […]

[…] A follow up to the Supreme Court’s decision in Fisher v. U. Texas. […]

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