Tuesday, June 25, 2013


The Supreme Court decided not to decide on the big affirmative action case before it: Fisher v. University of Texas at Austin.  Instead they sent it back to the court from whence it came.  So there was no overturning of the practice, but they made it as clear as they can that they want affirmative action to be under strict scrutiny.

In an opinion that required only thirteen pages, the Court explained that a university’s use of race must meet a test known as “strict scrutiny.”  Under this test, a university’s use of affirmative action will be constitutional only if it is “narrowly tailored.”  The Court in Fisher took pains to make clear exactly what this means:  courts can no longer simply rubber-stamp a university’s determination that it needs to use affirmative action to have a diverse student body.  Instead, courts themselves will need to confirm that the use of race is “necessary” – that is, that there is no other realistic alternative that does not use race that would also create a diverse student body.  Because the lower court had not done so, the Court sent the case back for it to determine whether the university could make this showing.

Sounds to me as if the Supremes are telling the lower courts to give them a better basis on which to rule against affirmative action.