The U.S. Supreme Court decided to take another look at affirmative action in college and university student admissions decisions when yesterday it agreed to hear Fisher v. University of Texas for a second time in its next term beginning in October 2015.
The petitioner Abigail Fisher, who is white, was rejected from admission to the University in 2008 and filed a claim alleging that the University’s admissions process violated the Equal Protection Clause because it considered race as a factor. The District Court granted summary judgment to the University, and this decision was upheld by the Fifth Circuit Court of Appeals with a significant degree of deference being given to the University.
The U.S. Supreme Court agreed to hear the case and issued its opinion in June 2013. In a 7-1 decision, the Supreme Court vacated the Fifth Circuit’s decision and remanded the case to the Fifth Circuit to “…assess whether the University has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.” That is, the Fifth Circuit must use strict scrutiny and closely analyze the evidence rather than accepting the University’s assertion that its consideration of race in admissions is done in a permissible manner. In July 2014, a divided three-judge panel in the Fifth Circuit issued another opinion on the case and again upheld the University’s consideration of race in the admissions process, this time using strict scrutiny.
What this means to you
While the Supreme Court’s first ruling in this case was fairly narrow, its willingness to rehear the case suggests it may be ready to issue a more expansive ruling with far-reaching effects on the use of race in the admissions process. Some commentators believe it could be the end of affirmative action, a proposition seemingly foreshadowed by Justice Sandra Day O’Connor in the landmark 2003 case, Grutter v. Bollinger, when she stated “[w]e expect that 25 years from now, the use of racial preferences [in admissions] will no longer be necessary….”