In a decision issued this morning, the U.S. Supreme Court avoided entering the political thicket of affirmative action by holding that a lower court applied the incorrect level of judicial review to a public university’s use of race in determining undergraduate admissions.
Writing for a 7-1 majority, with Justice Elena Kagan recused and Justice Ruth Bader Ginsburg in dissent, Justice Anthony Kennedy held in Fisher v. University of Texas at Austin that in cases where the government employs racial classifications, the courts must treat such actions as “inherently suspect” and subject them to the most searching form of judicial review available, an approach known as “strict scrutiny.” As he explained, “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.’”
In its decision below in favor of the University of Texas, however, Kennedy found that the U.S. Court of Appeals for the 5th Circuit failed to apply this rigorous standard and instead granted too much deference to school officials:
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. The Court vacates that judgment, but fairness to the litigants and the courts that heard the case requires that it be remanded so that the admissions process can be considered and judged under a correct analysis.
The upshot is that the Supreme Court’s jurisprudence on affirmative action remains unchanged—for now.