06/24/2013 07:05 pm ET Updated Jun 24, 2013

Fisher v. University Of Texas At Austin Decision: Lee Bollinger Sees Namesake Precedent Still Standing

NEW YORK -- During his tenure as president of the University of Michigan, Lee Bollinger's name became attached, for better or worse, with two of the key cases defining affirmative action in America's schools.

Bollinger, who now heads Columbia University, faced off against the plaintiffs in Gratz v. Bollinger and Grutter v. Bollinger, the 2003 Supreme Court decisions that restricted but ultimately upheld a college's right to take racial consideration into account when making admissions decisions. Justice Sandra Day O'Connor wrote in Grutter that "underrepresented minority groups" could be favored in such decisions if race was not the only factor considered and if the system didn't amount to quotas.

So recently, Bollinger watched with caution as Fisher v. University of Texas at Austin wound its way through the court system. In 2008, Abigail Fisher sued UT-Austin, arguing that it had discriminated against her as a white person in rejecting her application under the undergraduate school's race-conscious admissions practice. After watching the Supreme Court's arguments in October, Bollinger thought that the Grutter precedent would stand, although the UT system might be vulnerable.

On Monday, after a long wait, the Supreme Court issued a 7-1 decision that directed a lower court to reexamine Fisher's case and UT's policies specifically -- and hold them to the "strict scrutiny" standard for race-based actions -- but appeared to stick by Grutter.

"There were a lot of people who were very concerned about what this decision might portend for Bakke [the seminal 1978 affirmative action case]," Bollinger told The Huffington Post Monday. "The reaction of universities and colleges all across the country, which seek racial and ethnic diversity -- this further settles the constitutionality and legality of what we have been doing. That's the most important practical effect."

Bollinger said Monday's ruling is consistent with the outcome of the 2003 cases. "You can read this case and say the practical upshot is you have a significant majority of the Supreme Court reaffirming the doctrine of Grutter, which reaffirmed the opinion of Justice [Lewis] Powell in Bakke," he said.

On Monday, colleges and universities were still trying to make sense of the Fisher ruling. Civil rights groups and education organizations generally issued positive statements.

Dennis Van Roekel, president of the National Education Association, the nation's largest teachers union, was also pleased. "I think it's a big deal that the court recognize that a racially diverse classroom is a compelling interest of the government," he said in an interview. "We're a little bit surprised that they sent it back to the lower courts."

Barbara Arnwine, president of the Lawyers' Committee for Civil Rights Under Law, was disappointed that "the Supreme Court did not affirm the constitutionality of the University of Texas affirmative action plan," she said in a statement.

Even if the UT system is ultimately struck down by the lower courts, Bollinger said he thinks Grutter can stand.

"What the majority does is to say we're not going to just trust your word, universities and colleges, about all of this," he said of Justice Anthony Kennedy's majority opinion. "You can't do that. We're going to insist on evidence and proof. What we don't know is whether that is a new set of burdens, a new set of proofs, the doctrine saying [the] principle stays the same and the evidentiary basis is different. The court is vague about that."

Regarding the decision's statement that race-neutral options for diversifying student bodies should be exhausted before race is considered, Bollinger said it's hard to know what Kennedy exactly means. "He could mean that listening to experts within the university system and admissions people and others, we have considered other options, we don't see any that give us the same benefit, here are some that could come up. That is essentially what happened in Grutter and could continue to do so now," he said. "On the other hand, it may be that what's masked here is a disagreement within the majority about levels of proof required."

Still, Bollinger expects that in the future, university counsel will find ways to prove to courts that they have considered all race-neutral options before taking race into account.

He said he thinks a university such as Columbia will be legally prepared to defend the constitutionality of its admissions policies, even given the perhaps-heightened standard of the Fisher decision.

"We accept students from a pool of qualified candidates based on an array of criteria," Bollinger imagined Columbia arguing. "We think that you have to think about this in the context of American history and American society and the relations between different racial groups and ethnic groups. And we think that there's enormous importance in universities helping to build a better student body and a better society."



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