06/24/2013 01:29 pm ET Updated Aug 24, 2013

Affirmative Action Survives For Now, But Bar Is Raised

The United States Supreme Court held today in Fisher v. University of Texas that diversity is a compelling governmental interest for a public university to seek, but there are significant restrictions to employing race based measures in doing so. Justice Anthony Kennedy writing for the majority in a 7-1 decision, held that a lower federal appellate court erred by not holding the University to a 2003 decision and the exacting requirements of a long standing rule the government must follow when making distinctions based on race.

That test called the strict scrutiny test requires the government must seek (1) to achieve a compelling governmental interest when employing racial distinctions, and (2) that these measure be "narrowly tailored" to achieve those compelling interests. "Race may not be considered unless the admissions process can withstand strict scrutiny," Kennedy stated. The Supreme Court sent the matter back to the lower court with a more strict mandate, clearly rejecting the notion that the student's case should be dismissed without a rigorous review of the university's policies.

The Fisher case involved a white student who was denied admission to the university in a year where 13,000 were admitted out of 29,500 applicants. She did not qualify for automatic admission under Texas' top ten percent law, which accounts for about 75% of the university's admitees. The Fisher case is the latest of many addressing race and education.

Early Cases Failed To Protect Racial Minorities
The Fourteenth Amendment of the Constitution ratified after the Civil War in February 1868 provided the modern foundation for anti-discrimination law guaranteeing "the equal protection of the laws." Despite the Fourteenth Amendment's protections public schools throughout the United States were legally segregated nonetheless under the Supreme Court's separate but equal rule. That rule came from the 1896 Plessy v. Ferguson case involving segregated passenger trains. States segregated African-American students to inferior colleges, offered to send them out of state, and even admitted them but only if they could be banned from the classroom. In the widely disdained 1944 case of Korematsu v. United States, the Supreme Court upheld the forced wartime relocation of Japanese American citizens to guarded camps, but for the first time also held that racial classifications by government would be carefully examined by the courts.

Modern Cases Seek A Balance
Even after the 1954 decision in Brown v. Board of Education some public universities denied admission to African-Americans. In Brown, separate but equal public education facilities for different races was held to be inherently unconstitutional. In the 1967 case of Loving v. Virginia the High Court invalidated state bans on inter-racial marriage and ruled that governmental distinctions based on race could only be upheld for compelling reasons.

To remedy past discrimination and to achieve a diverse student body many universities adopted affirmative action policies of varying types. In the 1978 Bakke case the Supreme Court struck down an affirmative action program instituted by the University of California, Davis medical school that set aside a certain number of spaces for minority applicants as a violation of the 1964 Civil Rights Act:

Government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice, at least when appropriate findings have been made by judicial, legislative, or administrative bodies with competence to act in this area.

After a 1996 federal appellate court decision Texas enacted a law granting university admission to all students in the top ten percent of their class. In 2003 in Grutter v. Bollinger the Supreme Court upheld an affirmative action program currently used by Texas that takes into account an array of "plus factors" that include race. In another case that same year, the Court invalidated a University of Michigan program that mechanistically granted points to members of various minority groups.

High Burden On Universities May Signal Change To Come
Today's decision in Fisher puts a very high burden on public universities in carefully choosing the manner in which they try to achieve student diversity. The Court will not simply defer to well intended efforts to achieve diversity if they employ race improperly in their admissions consideration. Justice Clarence Thomas, the Court's second African-American justice wrote a highly critical concurring opinion: "Although cloaked in good intentions, the University's racial tinkering harms the very people it claims to be helping." President Obama appointee Justice Elena Kagan did not participate in the decision owing to her previous position of solicitor general, an official who presents cases before the court. In a solo dissent Justice Ruth Bader Ginsburg, noting that, "'state universities, need not be blind to the lingering effects of "an overtly discriminatory past,' [and] the legacy of 'centuries of law-sanctioned inequality...." agreed with the lower court's decision to leave the program as it is.

Justice Kennedy countered:

The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity....

The District Court and Court of Appeals confined the strict scrutiny inquiry in too narrow a way by deferring to the University's good faith in its use of racial classifications and affirming the grant of summary judgment on that basis....

In order for judicial review to be meaningful, a university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that "encompasses a . . . broa[d] array of qualifications and characteristics of which racial or ethnic origin is but a single though important element."

Commentators offered mixed assessments. NAACP leader Ben Jealous labeled the decision a "punt", but applauded that "every kid of every color gets a close look and a fair shot" in a CNN interview. Legal analyst Jeff Toobin held a different opinion stating that the ruling meant that down the line affirmative action was hanging by a "thread."