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Not the End of Affirmative Action as We Know It


Crystal ChambersCrystal Chambers

It’s not the end of affirmative action as we know it … or even admissions plans as they exist in Texas, Florida and California. With the Supreme Court’s narrow ruling in Fisher v. Texas that lower courts cannot defer to universities on the form of their affirmative action policies while upholding diversity as a compelling interest, affirmative action under Grutter v. Bollinger still stands.

When the Court originally agreed to hear the Fisher case, 10 years after Grutter, much shorter than the 25 year reprieve Justice O’Connor hoped would diminish the need for affirmative action programs, many pundits and scholars (including myself) opined that affirmative action was all but over. However, with the Court’s agreement to hear Schuette v. Coalition to Defend Affirmative Action, it was pretty clear that the Court was not leaning toward an affirmative action ban. If so, extending certiorari to Schuette, where the constitutionality of a public referendum on affirmative action is at issue, would have been redundant.

The Fisher case centers on the “Texas 10 percent” which guarantees students who graduate in the top 10 percent of Texas high schools admission in a university in the University of Texas system, not necessarily UT-Austin. Two White women, Abigail Noel Fisher and Rachel Multer Michalewicz, who applied but were denied admission from UT-Austin in 2008, sued the state for race-based discrimination under the plan. Neither woman graduated in the top 10 percent of their class. In addition, there were students of color who similarly were not extended acceptance letters with SAT scores and GPAs higher than Fisher (Micahlewicz’s case was considered by lower courts but not at the Supreme Court level).

The Court in Fisher ruled that the Fifth Circuit failed to properly evaluate the 10 percent plan under strict scrutiny. Strict scrutiny has two components. First, a government entity must prove that the interest at stake, in this case admitting a diverse student body, is a compelling one. The Court in Grutter held that this is an educational judgment to which the courts will defer if well supported. Second, the policy must be narrowly tailored. This is where the Fifth Circuit’s ruling fell short. It deferred to both the university’s interest and the policy details. However, the details of the policy fall squarely within the domain of judicial review: “It is at all times the University’s obligation to demonstrate, and the Judiciary’s obligation to determine, that admissions processes ‘ensure 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.’” Narrow tailoring requires that race conscious policies are

1) necessary, meaning that there are no effective race-neutral alternatives;

2) flexible;

3) time limited;

4) directly targeted; and

5) limited in their impact to innocent others (the least restrictive means).


As the Fifth Circuit decided to evaluate the policy on the university’s “good faith” effort, that court did not fulfill its duty and the Supreme Court remanded the case for further review at the circuit level.

Looking forward to Schuette

This fall, the Supreme Court will hear oral arguments in Schuette. At inception, the Supreme Court was created to be a counter-majoritarian branch of government. Independent from the electorate, the Court is generally free to protect the interests of minority groups against majorities. The Schuette case harkens to other areas where public referendums seek to curtail minority interests.

For example, in the case of Amendment 1 in North Carolina, the public voted to make a legislative ban against same-sex marriage a constitutional ban. The pragmatic effect was null, but the symbolic impact resounded through LGBT communities. In this vein, the Court’s decision in the challenge to the Defense of Marriage Act (DOMA) may be even more instructive than the decision in Fisher.

Crystal Chambers, J.D., Ph.D., is an associate professor of higher education leadership at East Carolina University.

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