Supreme Court Sidesteps Broad Affirmative Action Ruling

Author: David B. Weisenfeld, XpertHR Legal Editor

June 25, 2013

The Supreme Court has ruled 7-1 in Fisher v. University of Texas, No. 11-345, that a university's goal of racial diversity is not enough, by itself, to justify its use of race as a plus factor in admissions.

In sending the Texas affirmative action plan back for reconsideration, the Court held that it is the university's obligation to demonstrate that admissions processes "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."

Employment Implications

A host of employer groups had sided with the University of Texas in defending the legality of its race-conscious admissions plan. They feared that a ruling for the white student who challenged the plan would spell trouble for employer-initiated affirmative action programs, not to mention workplace diversity.

However, while the Supreme Court handed the student a victory, it appears employers have little to fear. That's because the justices avoided making a broad pronouncement of any sort about affirmative action.

Instead, the High Court limited itself to rejecting the lower courts' holding in favor of Texas because they did not closely examine how the university's admission plan worked in practice. The Court also declined to overrule its ruling in Grutter v. Bollinger, +539 U.S. 306 (2003), which held that "student body diversity is a compelling state interest that can justify the use of race in university admissions" provided the admissions plan is narrowly tailored and is not a quota system.

Writing for the Supreme Court, Justice Anthony Kennedy said the lower courts in the Texas case should have applied the most critical evaluation standard possible, and required the university to show that available, race-neutral alternatives did not suffice rather than relying on a "good-faith" standard. Good faith alone, Justice Kennedy noted, does not permit the improper use of racial considerations.

Next Battle Looms

It took the Supreme Court nearly eight-and-a-half months to reach a ruling in Fisher v. Texas, a sure sign of the divisiveness of this issue. But it will not be long before the Court hears another major affirmative action dispute.

The justices already have agreed to hear the case of Schuette v. Coalition to Defend Affirmative Action, No. 12-682 involving the legality of Michigan's voter-approved ban of using racial preferences in admissions to the state's public universities. The Michigan law prohibits preferential treatment based on race, sex or national origin in public employment, public education or public contracting.

The Sixth Circuit Court of Appeals had struck down the law in late 2012 without commenting on the portion of the law dealing with government hiring. The Supreme Court will hear arguments in this affirmative action case in its next term, which begins in October 2013.