Supreme Court Rules on Affirmative Action

Supreme Court Rules on Affirmative Action
Fisher v. University of Texas Sent Back to the Fifth Circuit
June 24, 2013

On June 24th, the United States Supreme Court issued a long awaited opinion on affirmative action in the case of Fisher v. University of Texas, but the ruling did little to change existing law with respect to the use of race as a criterion in university admissions.  In reality it was a non-opinion, as the Court sent the case back to the Court of Appeals for the Fifth Circuit to reevaluate its determination in light of the “doctrine of strict scrutiny.”

The Supreme Court opined that the Court of Appeal and the District Court did not use the appropriate standard, stating that“The District Court and Court of Appeals confined the strict scrutiny inquiry in too narrow a way by deferring to the University’s good faith in its use of racial classifications and affirming the grant of summary judgment.” 

After vacating the Court of Appeal’s judgment, The Court stated “[b]ut fairness to the litigants and the courts that heard the case requires that it be remanded so that the admissions process can be considered and judged under the correct analysis.”  Thus, the Court leaves for another day the fate of selection procedures of educational institutions of higher learning and specifically whether they may take race into account in admissions . 

The good news is that for now race can be one possible factor among many when reviewing applicants for admission to institutions of higher learning.  The bad news is that the possible future of race conscious considerations is now in the hands of the Court of Appeals for the Fifth Circuit. 

The Supreme Court also issued problematic rulings in two Title VII cases today, limiting liability for employers in discrimination suits (Vance v. Ball State University) and making employment cases alleging retaliation more difficult for employees to prove (University of Texas Southwestern Medical Center v. Nassar). 

All of these decisions remind us that it is time to push for a new Civil Rights Restoration Act, which should also address a fix for problems arising out of the  Federal Arbitration Act.