Monday, June 24, 2013

The Supreme Court kicks the can on affirmative action

The Supreme Court issued its decision in Fisher v UT, which was to send it back down to the lower courts and ask them to review the programs more stringently, and specifically to apply strict scrutiny when making that review.

Scotusblog's review in plain english is worth a read - here's a chunk of what it says:
Today a broad majority of the Court reinforced that affirmative action must be strictly reviewed, but it did not outlaw those programs. In an opinion that required only thirteen pages, the Court explained that a university’s use of race must meet a test known as “strict scrutiny.” Under this test, a university’s use of affirmative action will be constitutional only if it is “narrowly tailored.” The Court in Fisher took pains to make clear exactly what this means: courts can no longer simply rubber-stamp a university’s determination that it needs to use affirmative action to have a diverse student body. Instead, courts themselves will need to confirm that the use of race is “necessary” – that is, that there is no other realistic alternative that does not use race that would also create a diverse student body. Because the lower court had not done so, the Court sent the case back for it to determine whether the university could make this showing.

And a bit more from the NYT:
The admissions system that Ms. Fisher challenged is idiosyncratic. Three-quarters of applicants from Texas are admitted under a program that guarantees admission to the top students in every high school in the state. (Almost everyone calls this the Top 10 program, though the percentage cutoff can vary by year. Ms. Fisher just missed the cutoff.)

The remaining Texas students and those from elsewhere are considered under standards that take account of academic achievement and other factors, including race and ethnicity. Many colleges and universities admit all of their students on such “holistic” grounds. The question in the case decided Monday was whether Texas was entitled to supplement its race-neutral Top 10 program with a race-conscious holistic one.

The Top 10 program has produced significant racial and ethnic diversity. In recent years, about 25 percent of freshmen who enrolled under the program were Hispanic, and 6 percent were black. Thirty-eight percent of Texans are Hispanic, and 12 percent are black.

Monday’s decision let stand, for now, a longstanding but fragile societal compromise, one that forbids quotas but allows using race as one factor among many in the admissions process. That was the essential message of the court’s two earlier major encounters with the issue, University of California v. Bakke, in 1978, and Grutter v. Bollinger, in 2003.