<p>I am posting information about this case because it is applicable to Hispanic students applying to college. The purpose of my post is to be informative only. If you want to debate the points raised by the decision please DO NOT DO IT HERE. There are plenty of other threads in other forums debating “affirmative action” or the Fisher decision and I suggest you post your debate points in those threads. I have practiced law for over 25 years so I want to explain the decision and its affect on diversity in the college admissions process. </p>
<p>If you want to read the court’s decision then you can do so here at this link. Since the decision has not yet been put into a book known as a Supreme Court Reporter, the decision is currently only in “slip opinion” form. <a href="http://www.supremecourt.gov/opinions/12pdf/11-345_l5gm.pdf%5B/url%5D">http://www.supremecourt.gov/opinions/12pdf/11-345_l5gm.pdf</a></p>
<p>Here are the main points of the Fisher decision:</p>
<ol>
<li><p>The court affirmed the use of race in the admissions. The court reaffirmed earlier rulings allowing for a limited use of race-conscious public policies. It reconfirmed its ruling in Grutter v. Bollinger, 539 U. S. 306, upholding the use of race as one of many “plus factors” in an admissions program that considered the overall individual contribution of each candidate. (Interestingly retired Justice Sandra Day O'Connor who was the author of Grutter was in the audience today at the court when the Fisher decision was announced.)</p></li>
<li><p>The justices voted 7-1 to avoid the larger constitutional issue- whether the use of race-conscious school admission policies violates the equal protection rights of some white applicants. The court remanded the case back to the lower court (e.g. federal court of appeal) for further review. </p></li>
<li><p>The point for further review may be difficult for me to explain to non-lawyers so I will try my best. The Supreme Court in recent decades has established a three-pronged test to balance the government's interest against a constitutional right or principle. Federal courts use one of the prongs of the test to decide which laws may go too far and legally these prongs are called “standards of review”. These standards of review are rational basis scrutiny, heightened scrutiny, and strict scrutiny. Typically a law has an easier “time” of being found okay under rational basis scrutiny and a harder “time” under strict scrutiny. In Fisher, the Supreme Court said the correct standard of review was not used by the lower federal courts in evaluating the admission policies of the University of Texas. The court said the "university must prove that the means chosen" to attain diversity "are narrowly tailored to that goal." The Supreme Court said that “strict scrutiny” level of review must be used in evaluating a college’s use of diversity programs in admissions. According to the court, "Strict scrutiny [of the policy] imposes on the university the ultimate burden of demonstrating, before turning to racial classification, that available, workable race-neutral alternatives do not suffice.” Therefore the Fisher case is being returned to the lower federal court for the University of Texas to demonstrate that race-neutral alternatives do not work in increasing the number of Latinos/AA applicants in the “accepted-student” admission pool. Basically for a college to use diversity in admissions they can still do so, but they have to jump to a higher level in demonstrating why it is “necessary” for the university to use race to achieve the educational benefits of diversity. When Fisher was decided by the federal court of appeal, that court simply accepted the University of Texas’ position that consideration of race in admissions (specifically the way Texas did it) was necessary to achieve diversity in its freshman class without requiring the University to prove it. However now Texas must do additional work to “ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.” For non-lawyers think of it as a “race plus” policy which frankly is how it has been for many years already since the Bakke decision back in the early 80’s. (I.e. A “C” student doesn’t gain admission to Harvard simply because he/she is Latino/AA. The student must still have the qualifications for admission and race is just one factor). </p></li>
<li><p>The opinion was written by Justice Kennedy who is considered a moderate on the court. Many times the “tough” decisions are written by Kennedy because he is considered the one justice who can bring the different sides together for a court decision. The views of some of the justices on affirmative action are well-known so it is interesting to see how they voted. Justice Sotomayor who was joined by Justice Breyer joined the five more conservative justices in the majority. Sotomayor and Breyer are more left-leaning. Not surprisingly Justices Scalia and Thomas suggested continuing use of diversity programs in the classroom was unconstitutional but both were able to agree with the limited ruling of the majority. </p></li>
</ol>
<p>So for those students applying this year to college-race may still be considered by colleges in the admission process. One big positive to me in the opinion is this quote by Justice Kennedy: "The attainment of a diverse student body serves values beyond race alone, including enhanced classroom dialogue and the lessening of racial isolation and stereotypes.” I think this quote explains why the court did not throw out affirmative action in college admissions. </p>
<p>I hope this summary is helpful to explaining the decision. </p>
<p>I found a couple of articles that others may find interesting:</p>
<p>Itsv.</p>