"WASHINGTON — The Supreme Court on Thursday rejected a challenge to a race-conscious admissions program at the University of Texas, Austin, handing supporters of affirmative action a major victory.
The vote was 4-3. Only seven justices participated in the decision. Justice Elena Kagan had recused herself for prior work on the case as United States solicitor general and the late Justice Antonin Scalia’s seat remains vacant.
Quite an eventful day of announcements regarding by the SC.
It is that time of year. Haven’t read the decision yet, but it appears Kennedy is still on board with the presumption in favor of the college.
The decision is pretty surprising, since Justice Kennedy basically did a 180 between Fisher 1 and Fischer 2. But the impact of this decision is so small as to be close to meaningless.
The issue only arises in the context of state universities that have highly selective admissions. That’s a relatively short list. And a good chunk of those schools already are unable to use race-based AA because of state law bans (and those bans have previously been upheld by SCOTUS).
Of the top 50 USNWR state schools, Berkeley, UCLA, Michigan, UCSB, UCI, UCSD, UCD, UF and UW are all banned from using race in admissions by state law.
So that only leaves UVA, UNC, W&M, Ga Tech, Illinois, Wiscy, Penn State, Ohio State and Texas as the schools that could potentially use today’s decision. Pretty small beer.
I’m not surprised at all. The percentage of students admitted under the subjective consideration is only about 15%. What hurt Ms. Fisher’s case, though, was the fact that academically, she really was at the “bottom of the barrel” so to speak. I remember reading that of all the students admitted that year (which would be, literally, thousands), there were only a handful of kids whose GPA was lower than hers. UT’s acceptance rate is somewhat misleading, because even though it is higher than an Ivy, the best and brightest in Texas tend to want to go to school there, and kids with a GPA below 3.5 or so know they need not apply.
Re: Kennedy. He knows perfectly well that the law on affirmative action is in flux. Had Justice Kagan not been recused from the case, the “best” he could have gotten (assuming his fundamental hostility to affirmative action, which his past votes seem to bear out) by voting with the other conservatives would have been to have the lower court’s pro-affirmative action opinion affirmed by an equally divided court. If Trump wins the election, there will probably still be five votes on the Supreme Court to end or severely restrict affirmative action, but in the rather more likely event that Clinton wins, there will almost certainly be five votes to preserve it, and likely to change the standard Kennedy set in Fisher I.
By joining the liberals here, Kennedy ensured that there would be an extremely narrow opinion – narrower than the lower court opinion – and that his Fisher I opinion would get due respect. It is narrow enough that it won’t necessarily bother a conservative majority, including him, whose fifth member is appointed by Trump. And it has some shot at influencing a liberal centrist like Merrick Garland should he, or someone like him, ultimately fill the empty seat on the Court. Finally, it emphasizes once again how important a figure Kennedy is and has been on the Supreme Court. (And this could be one of the last chances he has to show that. If Garland were confirmed, he, not Kennedy, and maybe Breyer, would instantly become the fulcrum on which the Court was balanced, and the critical vote(s) to obtain a majority. So, from the standpoint of game theory, this was the best move available to Kennedy. Not a triumphant, winning move, just likely the move with the best chance of a net positive outcome.
Not being a lawyer, I found the Scotusblog breakdown of the subtleties of the decision helpful:
There were three facets of the Kennedy opinion for the majority that stood out:
First, that opinion referred to the Texas approach as “sui generis” — a Latin phrase for one-of-a-kind. That was the strongest indication that Kennedy wanted to signal lower courts that any different plan would have to satisfy the tough test that Kennedy himself had crafted when the Fisher case was decided by the Court in 2013 — a test that, he concluded on Thursday, the UT-Austin plan had passed.
Second, it stressed that campus leaders in Austin should not interpret the new decision as necessarily meaning that they could continue to follow the same policy, with its partial use of race, without changing it if circumstances change.
Third, it expressly ordered the university “to engage in constant deliberation and continued reflection regarding its admissions policies.” This phrasing appeared to forecast a future vulnerability for the university if it did not regularly review its policy in the future to see if the consideration of racial factors was still necessary to achieve its academic goal of a racially diverse student body.
Well said @JHS. Scalia’s passing obviously changed the dynamic in the room.
“This phrasing appeared to forecast a future vulnerability for the university if it did not regularly review its policy in the future to see if the consideration of racial factors was still necessary to achieve its academic goal of a racially diverse student body.”
In 2003 in the Michigan Law School case, O’Connor upheld the UM Law method (which by the way was subsequently overturned by the MI voters) but said that such race-based quotas had to be temporary and time limited. She SWAG-ed that such a system would not be necessary or legal in 25 years. So Kennedy is channeling the same idea.
Raced based AA in state college admissions is pretty much over. What little of it that is left will be replaced soon enough by a class-based method which I think is the better way to go.
UT lost me when they conceded that the goal of their method was to enroll more middle/upper class black kids. Hard to get excited when the goal of diversity works out to giving an admissions break to suburban kids of doctors and lawyers who just happen to be black.
Love the game theory explanation on why Kennedy would flip between Fisher 1 and Fisher 2.
Where it is still used (in both public and private schools), it seems to be much smaller in effect than it used to be, but lots of people posting here seem to believe that it is much bigger than it is. This includes both people who believe that they will benefit, and those who resent its existence.
@ucbalumnus How is it possible for those on the outside to know whether affirmative action has a larger, smaller or the same impact on admissions now as compared to before?
Thought this was a newer thread and got mighty confused when Clinton’s higher chance of winning came up.