Justices Warn Courts That Affirmative Action Demands Intense Scrutiny of Program Details

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By Kimberly Robinson

The validity of the University of Texas at Austin's affirmative action admissions program remains undecided, as the U.S. Supreme Court June 24 sent the issue back to the U.S. Court of Appeals for the Fifth Circuit to determine whether the program is narrowly tailored to its goal of a diverse student body.

The decision means universities may have to work harder to persuade courts that their consideration of race in admitting students passes constitutional muster.

The court's opinion, written by Justice Anthony M. Kennedy, affirmed Grutter v. Bollinger, 539 U. S. 306 (2003), by making clear that the aim of obtaining the educational benefits that flow from a diverse student body was a permissible government interest justifying the consideration of race in the admissions process.

However, the court held that the lower courts here “did not hold the University to the demanding burden of strict scrutiny,” when it deferred to the University's determination that its program was narrowly tailored to achieve that goal.

On remand, the court said that the Fifth Circuit “must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”

Only Justice Ruth Bader Ginsburg dissented, while Justices Antonin Scalia and Clarence Thomas filed concurring opinions. The concurring justices agreed that the Fifth Circuit did not apply strict scrutiny, and Thomas said he would overrule Grutter. Scalia noted that the petitioner here did not ask the court to overrule Grutter's endorsement of diversity as a compelling state interest, and said he adheres to his opinion in that case concurring in part and dissenting in part, where he said, “ ‘The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.' ”

Both Sides Pleased With Grutter?

Bert Rein, a partner at Wiley Rein LLP, Washington, D.C., who represented the petitioner challenging the university's admissions process, told BNA June 24 he was “pleased that seven of the eight participating members of the Supreme Court agreed with our argument that the lower courts had misinterpreted controlling precedent, including the Grutter decision, by failing to subject UT's justifications for the use of race in admissions to strict scrutiny.”

“UT will now have the burden of establishing that its use of race was narrowly tailored to advance a compelling interest in diversity for educational purposes,” he said.

But Gregory J. Vincent, vice president for diversity at the University of Texas at Austin, told BNA June 24 that he also was satisfied with the court's opinion, saying that the court's decision “affirms the basic framework of Grutter.”

Francisco M. Negrón Jr., general counsel of the National School Boards Association, who filed an amicus brief in support of the University of Texas, noted that Kennedy had actually dissented in Grutter, and said that Kennedy's endorsement of that case here emphasized that “Grutter remains good law.”

He told BNA June 24 that, in a “backwards way,” Scalia's and Thomas's concurring opinions actually helped to re-enforce that Grutter's determination that the educational benefits of diversity can serve as a permissible purpose for affirmative action programs was the “rule of the case.”

Vincent added that Kennedy's change in direction likely “reflects the reality of where we are today.” He said that because universities have used affirmative action in an “effective, but modest way—using race as only one factor” in the admissions process—courts are probably more comfortable deferring to their judgment.

But Annette Tyman, a partner with Seyfarth Shaw, Chicago, and a member of that firm's OFCCP & Affirmative Action Compliance team, told BNA June 24 that “Justice Kennedy's dissenting opinion in Grutter actually shapes the decision in Fisher, by ‘advocat[ing] for the demanding application of the strict scrutiny standard the majority rearticulates in Fisher.' ”

Hidden Landmark Decision

Adam Winkler, a professor at UCLA School of Law, Los Angeles, called the decision a “significant victory” for affirmative action proponents.

He said that the Supreme Court seemed prepared to overrule or significantly limit Grutter's holding, but that the court's decision stepped “back from the brink.”

Indeed, Kennedy seemed to go “out of his way” to emphasize that the court wasn't establishing any new rules, and that the courts below simply did not follow what was required under Grutter, Winkler said.

He added that the most significant thing about the court's decision may be that it is a “manifestation of John Robert's promise to push for narrow, consensus rulings that don't upset current law.”

In particular, he said that it was unlikely that the 13–page opinion issued June 24 took eight months to write—the case was argued in October—but instead was probably written in a few days.

It is “clear there is a backstory here,” Winkler said, suggesting that the court's opinion was probably the result of a lot of compromise and numerous drafts—some upholding Grutter, and some overturning it.

He speculated that “there is a landmark decision on affirmative action hidden on some justice's computer right now.”

Deference Not Permitted

The University of Texas's affirmative action program came under scrutiny after a rejected Caucasian applicant sued the school, alleging that its consideration of race violated the Equal Protection Clause. Although the university's program does not rely on a specific quota for minority students, it does explicitly consider race as one factor in the admissions process.

Relying on its decision in Regents of University of California v. Bakke, 438 U. S. 265 (1978), the court said that “[a]ny racial classification must meet strict scrutiny.” Under that standard, the university must show that its consideration of race is “ ‘narrowly tailored to further compelling governmental interests.' ”

Citing Bakke and Grutter, the court said that obtaining the educational benefits of a diverse student body could serve as a compelling interest justifying the consideration of race, and that courts should defer to a university's judgment that diversity would fulfill its educational goals.

While a court should not simply rubber-stamp that determination, it should not second-guess it either, the court said. Instead, it should ensure only that “there is a reasoned, principled explanation for the academic decision.”

However, while a university is entitled to some deference in relation to the compelling-interest prong, the court said that it is entitled to no deference in relation to the narrowly tailored prong.

While courts can consider “a university's experience and expertise,” Grutter makes clear “that it is for the courts, not for university administrators,” to make certain that the chosen means is narrowly tailored to a permissible purpose, by ensuring 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.' ”

Moreover, the court must be satisfied that the consideration of race is “necessary” to accomplish its goal of diversity, and that race-neutral alternatives could not achieve the same result. In doing so, courts should “examine with care, and not defer to, a university's ‘serious, good faith consideration of workable race-neutral alternatives.' ”

But “[r]ather than perform this searching examination,” the lower courts here “confined the strict scrutiny inquiry in too narrow a way by deferring to the University's good faith in its use of racial classifications,” the court said.

The court said the case should be remanded for the lower courts to determine in the first instance whether the university's admissions process was narrowly tailored to achieve diversity.

Chief Justice John G. Roberts Jr. and Justices Scalia, Thomas, Stephen G. Breyer, Samuel A. Alito Jr., and Sonia M. Sotomayor joined Kennedy's opinion.

Justice Elena Kagan was recused.

In her dissent, Ginsburg argued that the university had met its burden under Grutter, and that the university's admission's process should be affirmed.

Overruling Grutter.

Thomas's concurrence quoted his dissent in Grutter, and said that “ ‘[t]he Constitution abhors classifications based on race' because ‘every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.' ”

He argued that instead of helping minority students, affirmative action actually “ ‘stamp[s] [blacks and Hispanics] with a badge of inferiority,' and taints the accomplishments of all those who are admitted as a result of racial discrimination.”

“Racial discrimination is never benign,” Thomas said, and “[t]he worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.”

Full text at http://pub.bna.com/lw/11345US.pdf and 81 U.S.L.W. 4503.