Though the Supreme Court has again decided that colleges and universities may use race as a factor when seeking to promote diversity among the student body, the ruling delivered Monday in Fischer v University of Texas at Austin (Fischer) was far from a friendly nod to the forces of affirmative action.
For not only will school administrators have to demonstrate that non race-based solutions had failed to solve their diversity problems; courts considering lawsuits filed against school affirmative action programs will be required to apply the legal standard of strict scrutiny, the most demanding legal order of judicial review. “Once a court determines that strict scrutiny must be applied, it is presumed that the law or policy [in question] is unconstitutional.” It is from this clearly difficult starting place that schools which employ affirmative action programs will now have to defend their race-based policies.
In 2008, white applicant Abigail Fischer sued the University of Texas at Austin claiming that, in denying her admission, the school had violated the Equal Protection Clause of the 14th Amendment with its use of race in the admissions process. When the 5th Circuit Court of Appeals granted summary judgment to the University, Fischer asked the Supreme Court to review the case.
The Court ruled 7-1 that the 5th Circuit had not applied the standard of strict scrutiny required in race-based, affirmative action cases; and Fischer’s case was remanded to the 5th Circuit for further proceedings.
For nearly a decade, courts have deferred to the judgment and “good intentions” of universities whenever the constitutionality of affirmative action programs was brought into question. In Fischer, however, the Court ruled that “…affirmative action plans must be scrutinized by courts without giving any deference at all to the university’s judgment.” As Justice Anthony Kennedy wrote in the very brief (13 pages) Opinion of the Court, strict scrutiny “does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice.”
In his concurrence with the Court’s ruling, Justice Thomas made this observation on the effect of strict scrutiny on race-based diversity programs: “This most exacting standard ‘has proven automatically fatal’ in almost every case. And rightly so. Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that [racial] classifications ultimately have a destructive impact on the individual and our society.”
Continuing on, Thomas writes: “The Constitution abhors classifications based on race” because “every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.”
Though the Fischer decision means affirmative action will live to blight another day, schools that seek to defend before a court their racial solution to diversity issues may well find the “automatically fatal” warning of Clarence Thomas quite prophetic. The Fischer ruling dealt a significant blow to the would-be practitioners of affirmative action on college campuses. Let us hope along with Justice Thomas that the blow is a fatal one.
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