The Supreme Court delivered a surprise victory for supporters of affirmative action on Thursday, ruling 4-3 in favour of race-conscious admissions.
The decision came as a surprise to many following the case.
The case, Fisher v. University of Texas at Austin (UT), involves a woman named Abigail Fisher who argued she was unfairly rejected from the university because she is white.
The university’s policy automatically accepts students in the top 10% of their high school class and uses a “holistic,” race-based policy to fill the rest of the incoming class. Fisher claimed she would have been accepted if she had been a different race and contends that the University of Texas’ policy denied her equal protection under the law.
This wasn’t the case’s first time in front of the Supreme Court. In 2013, the justices heard arguments and compromised with a decision to send the case back to a lower court for more fact-finding, with the expectation that it would return. Only Justice Ruth Bader Ginsburg dissented, arguing that the Court should have upheld the University of Texas’ policy.
And when it returned last year, the inevitably of a tie loomed. Justice Elena Kagan recused herself, and Justice Antonin Scalia, who deeply opposed affirmative action, would likely have sided with the three reliably conservative justices — Roberts, Thomas, and Alito — against Kennedy, Breyer, Sotomayor, and Ginsburg. Or, Kennedy could have sided with the conservatives, and the court would have ruled 5-3 against affirmative action.
But when Scalia died in February, the case was left to only seven justices to decide, and the outcome depended on Kennedy.
As the first time Justice Kennedy has ever voted to uphold an affirmative action program, the decision came as a surprise to many. He has previously acknowledged that schools have a legitimate interest in diversity but opposed affirmative action as a policy.
In the 2003 admissions case Grutter vs. Bollinger, in which the Supreme Court upheld the affirmative action policy of the University of Michigan Law School, Kennedy dissented.
“Preferment by race, when resorted to by the State, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality,” Kennedy wrote.
But this time around, Kennedy was supportive, even writing the majority opinion.
“A university is in large part defined by those intangible ‘qualities which are incapable of objective measurement but which make for greatness,'” Justice Kennedy wrote, quoting from Sweatt v. Painter, a desegregation case. “Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”
Vinay Harpalani, a law professor at Savannah Law School, believes Kennedy might have foreseen a more liberal court in the future that would lean in favour of affirmative action — and didn’t want to resist the inevitable if the issue returned.
“Does he really want to be the justice who tries to get rid of affirmative action?” he said. “I don’t think he wants to be remembered that way.”
Kent Greenfield, a professor at Boston College School of Law, who also expects the Supreme Court to become more liberal in the coming years, does not forsee much resistance to affirmative action policies in college admissions after today.
“The opponents of affirmative action had keyed this case up for years to be the case that the court strikes down,” he said. “I think this case will go down as the last gasp for affirmative action opponents.”
But the decision won’t bring any sweeping changes to the status quo — many universities have been using race-conscious admissions for years. Harpalani said the Supreme Court’s decision just gives other colleges and universities a “blueprint” for how to justify their race-conscious admissions policies.
“I don’t see any broad consequences for universities in general,” he said. “They didn’t change the doctrine that much.”
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