When the Supreme Court Speaks...

Everyone wonders...

By a 7-1 vote a few days ago, the Supreme Court told an appeals court that it misinterpreted the justices' precedent when reviewing the University of Texas at Austin's affirmative action policy.

The decision is a provisional victory for Abigail Fisher, a white woman who claimed that UT-Austin unconstitutionally discriminated against her after the state's flagship university rejected her application in 2008 under its race-conscious admissions program. UT-Austin will now have a much more difficult job of proving its program constitutional under the standard the Supreme Court clarified on Monday.

Justice Anthony Kennedy, writing for the majority, endorsed the Supreme Court's prior decisions establishing affirmative action as constitutional to further states' compelling interest in fostering a diverse student body. But the majority maintained that the U.S. Court of Appeals for the 5th Circuit did not give a hard enough look at 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."

Kennedy's opinion is largely a reiteration of his dissent in the landmark 2003 Supreme Court case, Grutter v. Bollinger. In that decision, Justice Sandra Day O'Connor sided with the court's four liberals to uphold the University of Michigan Law School's affirmative action policy and, in so doing, reaffirm the constitutionality of race-conscious university admissions.

Back then, Kennedy accused the Grutter majority of watering down strict scrutiny, a standard of review that the court first articulated in 1978 -- a standard that Kennedy did not believe the University of Michigan was able to meet. For the policy to meet the standard of strict scrutiny, according to Monday's majority, it must be absolutely necessary to achieve diversity on campus. Whether UT-Austin can meet that standard is a question the Fisher majority has left for another day.

Justice Ruth Bader Ginsburg, the lone justice dissenting decision, maintained that the appeals court faithfully applied Grutter. "I would not return this case for a second look," she wrote, because "the University reached the reasonable, good-faith judgment that supposedly race-neutral initiatives were insufficient to achieve, in appropriate measure, the educational benefits of student body diversity."

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