The United States Supreme Court’s long-awaited decision in Fisher v. University of Texas at Austin, No. 345, 570 U.S. ___ (2013), has arrived without the massive change to affirmative action law that many commentators predicted, but may have increased the burden on affirmative action proponents in public higher education. Since oral arguments were heard in October 2012, many Supreme Court experts viewed the constitutionality of affirmative action as hanging in the balance, with a large contingent speculating that it would get a drastic facelift or might even be struck down altogether.
Its demise will have to wait, if it occurs at all. Justice Anthony Kennedy, writing for the seven-vote majority, made surprisingly quick work of the Equal Protection Clause case in a 14-page opinion affirming the strict scrutiny standard applied in Grutter v. Bollinger, 539 U.S. 306 (2003), and remanded the case to the Court of Appeals for further consideration. The Court found that the Fifth Circuit had improperly applied the second prong of the strict scrutiny standard of review, which requires that any race-conscious program be “narrowly tailored” to meet its goal, by granting deference to the University. The University, the Court said, would have to satisfy the appeals court that it had done so and that “no workable race neutral alternatives would produce the educational benefits of diversity.” In this inquiry, good intentions would not carry the day and little deference would be accorded to the University’s determination. (The first prong of the standard requires a finding of a compelling public interest in the practice under review; applying a deferential approach, the Court concluded the University had satisfied this requirement by establishing the benefits of a diverse student body.)
University of Texas at Austin President Bill Powers vowed the school will continue to defend the University’s admission policy.
Implications for Employers
For employers, however, the Court’s decision on public higher education does not affect the legitimacy of voluntary actions by private corporations, or enforcement of Title VII of the Civil Rights Act of 1964 by the U.S. Equal Employment Opportunity Commission (EEOC), or responsibilities under Executive Order 11246, requiring affirmative action by government contractors, enforced by the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP).
Furthermore, the applicable standards and the validity of diversity and inclusion programs that many major corporations have determined are vital to their success, and the “business imperative of diversity to their customers, employees, and stockholders, on which they depend, are not affected by Fisher. Corporate America is not burdened by the constraints of the Equal Protection analysis, and may continue in its commitment to diversity and inclusion in reasonable ways. A majority of the Justices recognizes diversity as a compelling interest, as do major companies, many of which expressed their strong support by filing amicus curiae briefs with the Supreme Court (57 Fortune 100 and other leading American businesses filed briefs, and another 11 small businesses and 11 small business associations filed or joined in such briefs). Companies can continue to enhance their diversity and inclusion programs (sometimes referred to as “voluntary affirmative action”).