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Clarity on Affirmative Action Case Will Have to Wait

The Supreme Court sent back Fisher v. University of Texas to the lower courts June 24, meaning it could be a while before this case carries any serious implications for affirmative action programs.

June 25, 2013

Affirmative action programs are safe—for now.

The U.S. Supreme Court considered but did not rule June 24 on Fisher v. University of Texas, instead sending the affirmative action case back to the 5th Circuit Court of Appeals in a 7-1 decision to assess the constitutionality of the university's race-based aspect of its admissions policy.

"The court gave summary judgment to the lower courts; it didn't go through with the trial phase, because the facts were not in dispute. So essentially they sent the case back to make sure that the university showed, with a very searching review, it considered other alternatives before it added race back to the admission decision-making process," says Shirley Wilcher, executive director at the American Association for Affirmative Action.

The University of Texas was pleased with the high court's decision.

"We're encouraged by the Supreme Court's ruling in this case," said Bill Powers, president of the University of Texas, in a written statement. "We will continue to defend the university's admission policy on remand in the lower court under the strict standards that the court first articulated in the Bakke case, reaffirmed in the Grutter case, and laid out again today. We believe the university's policy fully satisfies those standards."

The U.S. Court of Appeals could rule in favor of either Abigail Fisher, the plaintiff in the case, or the university, or it could remand the case down further to the U.S. District Court for the Western District of Texas. Fisher could even end up back in the Supreme Court one day, Wilcher says.

Because the Supreme Court remanded the case back to the Court of Appeals, there will be no immediate changes to affirmative action programs.

"Right now [Fisher] has no impact. The law is still the law. That's in employment and in higher-ed admissions. One could state vaguely, that this ruling doesn't affect any of that; that the laws, as they relate to employment, are still the law. Diversity programs may still go forward, consistent with legal precedent up to this date," Wilcher says.

The lawsuit was filed by Fisher, who was denied admission to the University of Texas at Austin in 2008. She missed automatic acceptance to the university under the state's "Top 10 Percent Law," which gives any Texas high school student who graduated in the top 10 percent of his or her class automatic admission to a Texas state university. Because of this, Fisher's application to the school was examined and reviewed with regards to her academic performance and leadership qualities, as well as her race.

Fisher, who is white, sued the university, claiming she was discriminated against because of her race in violation of the 14th Amendment. Her lawyers argued the state law provided the university with a diverse student population on its own and that the university's consideration of race in the traditional application process was unnecessary and, ultimately, unconstitutional.

However, the university claimed Fisher would not have been admitted to the school, regardless of her race, simply because her academic credentials were not strong enough, which put into question whether she had the right to sue the university in the first place. Furthermore, the university argued its consideration of race in the application process was legal under the 2003 Supreme Court decision reached in Grutter v. Bollinger, which upheld the validity of the University of Michigan's affirmative action procedures in its admissions process, according to the initial petition filed with the Supreme Court.

The Court of Appeals has been charged by the Supreme Court to apply more scrutiny to the University of Texas' use of race as a factor in their admissions procedures.

Justice Anthony Kennedy, who penned the court's opinion, wrote, "In order for judi­cial review to be meaningful, a university must make a showing that its plan is narrowly tailored to achieve the only interest that this court has approved in this context: the benefits of a student body diversity that encompasses a broad array of qualifications and characteristics of which racial or ethnic origin is but a single though im­portant element."

Max Mihelich is a Workforce associate editor. Comment below or email mmihelich@workforce.com. Follow Mihelich on Twitter at @workforcemax.