Herbert Dyer, Jr.

The Supreme Court ordered additional review by an appeals court in an affirmative action case arising out of University of Texas-Austin, as reported by MSNBC.

The case was originally brought by Abigail Fisher, a white woman who sued UT-Austin. Fisher averred that the school unconstitutionally discriminated against her when it rejected her 2008 application for admission by applying its race-conscious (affirmative action) policy to her.

UT-Austin must now meet prior Supreme Court ordered standards. Justice Anthony Kennedy, writing for the majority, reaffirmed those prior decisions which recognized affirmative action as constitutional if its use furthered states' compelling interest in fostering a diverse student body.

But the 7-to-1 majority also argued that the Court of Appeals for the 5th Circuit did not give enough scrutiny to UT-Austin's race-conscious admissions program.

"The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference," Kennedy wrote. "Strict scrutiny must not be strict in theory but feeble in fact."

This statement is basically a rewording of Kennedy's dissent in the landmark 2003 Supreme Court case, Grutter v. Bollinger. There, the court upheld University of Michigan Law School's affirmative action policy and, thus reaffirmed the constitutionality of race-conscious university admissions.

In Grutter, Kennedy accused the majority of gutting the strict scrutiny standard, a standard that the court first articulated in 1978 -- a standard that Kennedy did not believe the University of Michigan met at that time.

Today's majority allowed that affirmative action policies must meet the standard of strict scrutiny: its use must be absolutely necessary to achieve diversity on campus. The question of whether or not UT-Austin had met that standard was not addressed by this decision.

Fisher is the first higher education affirmative action matter faced by Chief Justice John Roberts and Justices Samuel Alito and Sonia Sotomayor. Justice Elena Kagan, herself a former dean of Harvard Law School, recused herself, due to her active role in this case as President Barack Obama's first solicitor general.

By signing on to Kennedy's opinion, Roberts and Alito have signaled that they do not agree with the slash and burn approach of Justices Antonin Scalia and Clarence Thomas. Those two have vigorously opposed race-based affirmative action for any reason and in any manner.

"[A] State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause," Thomas wrote. "The University’s professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now-denounced arguments of slaveholders and segregationists."


Today's decision is good news for proponents of race-based affirmative action. Fisher affirms the Court's earlier pronouncement in Grutter that affirmative action can – indeed, must – be used to achieve “diversity” on public university campuses.

When I matriculated at Indiana University in 1966, there were only 500 black students out of a student body of 29,000. Most of us were on some sort of scholarship, and all of us were considered (ranked) as among the best former high school students in the state. For those black students who did not rank in the top ten percent of their graduating class, Indiana was closed to them. Yet, white students from all ranks were admitted by virtue of their “resident” status as native Hoosiers.

In other words, because I was an “A” student, I got to go to the state's best public university; whereas my sister, a mere “B” student could not. Meanwhile, white students from our same high school who were “C” students automatically qualified and were admitted.

That was race-based “affirmative action” in the other direction.

After many protests, sit-ins, take-overs of buildings and classrooms, by black students at Indiana beginning in '67, Indiana instituted an aggressive and early form of “affirmative action” for black students. They did not call it that then, but the effect was the same.

Today, IU is one of the most diverse, beautiful – and interesting – campuses in this nation-state. It still ranks among one of the best public universities in the world.

Go IU!