Supreme Court

Supreme Court Agrees to Hear New Affirmative Action Case

Fisher v. University of Texas at Austin is headed back to SCOTUS.

|

Credit: C-SPAN

The constitutional debate over affirmative action is headed back to the U.S. Supreme Court. Earlier today the justices agreed to hear oral arguments next term in Fisher v. University of Texas at Austin. At issue is whether that public university's use of race in determining undergraduate admissions violates the Equal Protection Clause of the 14th Amendment.

Sound familiar? That's because the Supreme Court has already heard this case once before. In a June 2013 opinion that surprised most legal observers, the Court refused to rule on the merits of the university's plan. Instead, the majority opinion of Justice Anthony Kennedy sent the case back down to the lower courts for further hearings.

Although Kennedy maintained that the lower courts erred "by deferring to the University's good faith in its use of racial classifications," he maintained that "in fairness to the litigants and the courts that heard the case," Fisher should "be remanded so that the admissions process can be considered and judged under a correct analysis." What is the correct analysis he had in mind? As Kennedy explained, 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." Because the U.S. Court of Appeals for the 5th Circuit failed to apply that analysis in Fisher I, Kennedy ordered the 5th Circuit to correctly apply it in Fisher II.

A few months later the 5th Circuit came back with its Fisher II decision. Once again, the 5th Circuit upheld the use of race in undergraduate admissions by the University of Texas at Austin.

Sometime next fall, the Supreme Court will review that decision. This time around I expect we'll receive a clear ruling on whether or not UT's affirmative action policy can survive strict scrutiny under the Constitution.

NEXT: Civil War Games and Apps Return Online

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. How about they again hear a challenge regarding whether a law means what it says or whether it means what Roberts thinks someone might have intended it to mean?
    Maybe if they get another chance, they could avoid making asses of themselves this time.

    1. “…it means what Roberts thinks someone might have intended it to mean?”

      The problem is that the law was written the way is it written in order to bully states into setting up exchanges. Not only did the Nazgul rule incorrectly on the letter of the law, they ruled incorrectly on the intent as well.

      Roberts rules on what he thinks congress’ intention should have been. King v Burwell is the most egregious case of legislating from the bench that I know of.

      1. Slaughterhouse beats it. Not only did they ignore the plain language, they ignored the intent as understood by both pro and con during both the Senate debate and all the state ratification debates.

        1. Wickard is pretty damn bad, too. Granted, it wouldn’t exist without Slaughterhouse.

      2. Do you know the best thing to do when we need congress to clarify a law? Send the damn thing back to congress! Under the “Robert’s Court,” the Supreme Court has become the editor of the legislative branch.

        1. THIS ^^ Even if the law has a small typo, if it causes ANY ambiguouity in the law, declare it null and void and make Congress fix the damn thing. It really is that fucking simple.

          The Justices shouldn’t be there to “interpret” the law. That should be clear enough to not need interpretation. They should be there to make sure the law is enforced properly and that it is consistent with the US Constitution.

    2. Roberts’ consulted way of deciding the law is like the legal equivalent of ‘Victor/Victoria’.

  2. This decision will make it legal to discriminate against all non-majoritarian groups, provided that the group on whose behalf the discrimination occurs passes a complicated test of historical oppression.

    1. You know how the government created the food pyramid to help us eat more gooder? Well, now we need a privilege pyramid to help us discriminate more gooder.

      1. That’s an excellent idea. Let’s throw all of our respective principles to the wind and author the study that will justify the Office of the Social Justice Czar, which we’ll divide in half–since you’re single, you get the women, and you also get the blacks because I’m ineligible as a Southerner. I get all of the rest. We’ll naturally have to declare ourselves to be minorities. I shall henceforth be from Yakut.

        1. I’m from Berlin, NH then.

          1. Wow, you’re looking for the sympathy vote for your confirmation hearings. Naturally, the most unprivileged groups will be the ones who pay us the most.

      2. Will the governments privilege pyramid make another 30% of us obese as its food pyramid did?

        1. Well, of course! It’s the government, after all!

        2. We’ll call it the Privilyamid

  3. What does Roberts’ magic 8-ball say on the day they decide the case?

    1. “Constitution hazy, make something up.”
      “Government wins again.”

      1. “FYTW”

        1. “Equal protection” means granting special privileges and advantages to certain designated groups at the expense of others. Because words mean whatever the Nazgul want them to mean, nothing more and nothing less, and FYTW.

          1. “Prevaricate and ask again.”

            1. Dude, I spit my protein shake out I laughed so hard! Hilarious!

          2. Clearly you didn’t take enough social science classes to know that the law is “indeterminate” and the meaning of words is “socially constructed” as are principles. Foucault and Derrida and all that.

  4. Affirmative action will be a guaranteed right?

    1. I smell a penaltuition solution coming.

      1. Yes. Those who paid unsubsidized tuitions to go to school will have to pay a penalty based on a privilege multiple of the subsidies they did not receive.

        1. So it’s not enough to simply promote certain groups of people (which implies degrading other groups), but now we have to explicitly punish people who belong to groups that are deemed evil and born with original sin. That’s going to work out well.

    2. You’re not thinking big enough… Under the 14th amendment, public schools may not deny admission to anybody… oh, and because college is now a fundamental right, it’s free.

  5. It’s not discrimination or favoritism when the government approves of the activity.

    Right?

    1. Sure it is, or rather was, once the next government reverses policy and favors the other group. We’ve always been at war with Eurasia.

  6. Let me guess, “Equal Protection” means whatever the fuck the Nazgul want it to mean on any particular day. Because FYTW.

  7. Don’t know about the rest of you, but I’m a bit ‘off’ following the Supreme Court, TMZ-like.

    What say we talk about something else?

    1. Can you believe what happened on True Detective?!

      1. It is a fictional story so, no.

    2. How about The Guardian and the big meanies vs the poor, innocent Greeks?

      “A number of academics, including former Archibishop of Canterbury Rowan Williams, have written to us to support the Greeks and calling on the European union to recommit to the principles of democracy:

      Over the past five years, the EU and the IMF have imposed unprecedented austerity on Greece. It has failed badly.”
      http://www.theguardian.com/bus…..losed-live

      You can scroll down and find Stiglitz now admits that bankers care about all sorts of things other than profits!
      “But, again, it’s not about the money. It’s about using “deadlines” to force Greece to knuckle under, and to accept the unacceptable ? not only austerity measures, but other regressive and punitive policies.”
      Those meanies only care about profits! Except when they have a chance to care about deadlines! And STUFF!

      1. The Guardian is nearly as bad as Salon. It is really just a commie rag.

        I don’t have much sympathy for the Krauts. If you loan money to the wino who lives under the bridge you can’t realistically expect to get your money back.

        1. Suthenboy|6.29.15 @ 2:15PM|#
          “The Guardian is nearly as bad as Salon. It is really just a commie rag.”

          It is, but it is also running a constant up-date, so I’ll filter the Zoe Williams dreck from the info.

        2. I’ve always thought the Guardian was even worse than Salon. For me it goes NYT, Slate, Salon, Guardian in the order of stupidity. I guess Salon and the Guardian are pretty close, but from the stories I’ve seen they’ve been even worse, especially on victimhood masturbation front (for some reason that bothers me more than the old fashioned socialist kind of stupidity).

      2. What is so utterly retarded about this is that the entire WORLD’S MARKETS are dumping because one insignificant unemployed uncle might have to move off the couch.

        1. “[…]What is so utterly retarded about this is that the entire WORLD’S MARKETS are dumping[…]”

          Not so much.
          Germany and France are getting hurt, what, 3-4%, but they are the loaners to that uncle; that’s reality.
          Spain and Italy are taking a bit more of a hit, but that’s easy to understand; they’re next in line if they don’t clean up their acts.
          The US? Hey, we’re gonna end up taking some hit, but the DJIA is off all of 1.6%. That sounds like a pretty accurate prediction of the costs.

          1. Germany and France are getting hurt, what, 3-4%, but they are the loaners to that uncle; that’s reality.

            To paraphrase Charlie Murphy after kicking Rick James’s ass, “Yo, we DID just help them out”.

            Helping France and Germany to wake up to reality and quit counting Greece’s debt as an asset is a move in the right direction. This will also help Germany and France “chasing Greece’s economy down”.

        2. You’re both right and wrong about Greece. Like every other EU country they spent beyond their means. We all know they cheated their way into the common currency and shouldn’t have been allowed in. That’s water under the bridge, though. There’s a tried and true method for over indebted countries to get control – default without actually defaulting; they devalue their currency. The ECB has been attempting to devalue via quantitative easing, but it’s too little, too late for Greece. So, instead of the bounce in GDP that usually comes with a devaluation they’ve absorbed all that internally which shows up as unemployment and GDP contraction. The EU will continue with QE because if they don’t France, Italy and Spain will experience the Greek outcome.

          The EU is doing two things that I can see. 1) They’re running an experiment. They want to know how a default will affect the markets, the bond market specifically, in case the others find themselves there. 2) They want to engage in more QE so the Euro reaches parity with the dollar. A Greek default gives them amble justification for rationalizing an expansion of their QE.

          The Greeks are guinea pigs. We should all be paying attention to what happens to them because it will happen to others too.

          1. Unfortunately, getting caught up in the details of Whack Bat is exactly what caused this, and takes attention away from the central thesis: Europe (and the rest of the globe) is and will get deeper into the quagmire of moral hazard.

      3. Those idiots actually believe the 4th Reich cares about democracy?

        -jcr

  8. Prediction:

    “Affirmed.” 5-4.

    1. They wouldn’t have taken it if they intended to affirm it. They could’ve just let the 5th decision stand.

      Kennedy is the swing vote and he’s pissed about Fisher II. It’s getting thrown out.

      1. Maybe. Kennedy is open to affirmative action, he just scrutinizes it more heavily compared to the liberal justices (who don’t scrutinize it at all).

        If UT’s AF policies hemmed-in closely to what Kennedy wanted, I could see him affirming. The Fifth Circuit is probably one of the more conservative circuit courts, anyway.

      2. If you read that Roberts quote below, you will find that Kennedy did not join that section of the opinion. That signals to me that Roberts, Scalia, Thomas, and Alito are against AF entirely, while Kennedy isn’t.

      3. We just had another decision that installed “disparate impact” – unequal results – as proof of discrimination, even if nothing can be pointed to as a discriminatory action.

        Don’t be surprised if the clear language of a law – The Civil Rights Act – is twisted to be the opposite of what it says, again.

        Civil Rights Act of 1964,SEC. 703(j) Nothing contained in this title shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this title to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.

        1. how many periods are there in that paragraph?

  9. Why do I have a feeling that Affirmative Action will NEVER end? I have to admit that I have a particularly large chip on my shoulder about it since I was unable to go to college and missed out some great job opportunities just because I was born with the wrong skin color and gender. I don’t expect special treatment, but I shouldn’t be denied opportunities over something beyond my control. But with Proggies it’s always about payback. Some people in the past were mistreated so someone in the present must now be punished.

    1. I think racial preferences are bullshit, and would like to see them (along with legacy preferences) abolished, but how did affirmative action prevent you from going to college at all? Did you apply to Harvard and nowhere else? No “safety school”?

      1. Every now and then, Roberts says the right thing:

        “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

        Parents Involved in Community Schools v. Seattle School District No. 1 (2007)

      2. I grew up dirt poor in a single-parent household. I couldn’t afford to pay for college (even community college) even though I was working a full-time job ($3.10 an hour). I had good grades but didn’t qualify for any of the handouts available to poor people because I was white and male and my deadbeat dad made too much money. Loans were out of the question because my absentee father ran up a ton of debt and declared bankruptcy–destroying his credit, my mother’s credit, and my credit. I tried every avenue, but there was no way I could make it happen. So, I had no choice but the join the military instead. But not having a degree has always held me back, so I’m pretty bitter when I consider where I COULD be right now if not for those artificial barriers set up by my own government.

        1. A lot of people didn’t let the lack of a college degree keep them from success and happiness.

          You could be one of them. There was this one guy who was a serial failure as a businessman until at the age of 56 he opened up a hamburger joint called McDonalds.

          Google offers free coding lessons online and you can study as much or as little as you want. I have no idea how far it can take you but it would be a start to get your foot in the door.

          There are a multitude of avenues for success in this country open to those who are motivate to look for them and take advantage of rather than bitterly proclaim ” Woe is me”.

          1. It only pisses me off because I always behaved and did well in school because I thought I’d somehow be ‘rewarded’ later in life. Yeah, I quickly learned that was stupid. But in spite of having no degree I’ve worked as a Technical Writer, Graphic Artist, UI Designer, Multimedia Developer, and Engineer at Fortune 500 companies. But whenever I lose my job it takes a loooong time (usually 9-12 months) to find something comparable–because I don’t have that piece of paper. I could be much worse off, but it’s hard not to imagine how much better my life would be right now if there’d been some way for me to attend college.

            1. America has always rewarded people who get out and do things that others find valuable.

              There is no such thing and checking the right boxes and behaving well in the right settings, and then expecting good things to come because you earned a right to them. I’ve seen this in many instances where people who went to the “best” schools thought they could later coast but still do well, while those who went to 2nd tier schools bust their butt after school. Guess what, the ones who busted their butt seem to be the ones who do better over time.

              This is the biggest lie those that promote AA instill in people. Good things do not come to those with the right qualification markers, but to those who bust their butt working hard in the right areas. AA proponents convince people that if they go to schools x, y and z, that then they can sit back and do well, as if everyone in school x are one homogeneous group. Then when they go to schools x, y and z, but things continue to not go well, they are taught believe it is racism, instead of work ethic.

              The fact is that the reason more people who go to the top schools do better over time is not because they went to the top schools, but that they probably wokred the hardest to get in and thus continue to work the hardest afterwards. People who didn’t have to work as hard to get in to the same school typically do not work as hard after school, and the result is they don’t do as well as their peers.

              1. Well, since I don’t have a degree I’ve had to work much harder and taught myself marketable skills that have enabled me to have a comfortable middle-class lifestyle. I can honestly say I never got any breaks or received opportunities that weren’t available to everyone else. But I’ve never felt like I’ve had the chance to reach my full potential, and that’s because I don’t have the ‘correct’ education. And it absolutely infuriates me when Proggies dismiss my modest successes as a result of White Privilege–as if I had something handed to me. I did not. I can honestly say that I’ve earned everything and never received a handout or free ride. And I’m probably a better person because of that.

                1. “And it absolutely infuriates me when Proggies dismiss my modest successes as a result of White Privilege–as if I had something handed to me. I did not. I can honestly say that I’ve earned everything and never received a handout or free ride. And I’m probably a better person because of that.”

                  It infuriates me as well. And I think it is infuriating more and more non Proggies, the whole White Privilege thing is pure racism. Who knows if it will continue, or if there will be a reactionary lash back.

                  Booker T. Washington’s civil rights movement was rooted in the notion of hard work. He said and believed that the fact many blacks had to work harder, in turn made them better than their white counterparts who didn’t have to work as hard for the same things.

                  Today’s civil rights “movement” of grievances and handouts is the exact opposite of Booker’s movement and vision. Based on his writings I think he might be horrified to see how things morphed.

          2. You know what?
            GFY
            Why couldn’t the “minorities” go and apply themselves instead of being given the free ride?
            Many white men were denied their desired path in life for no other reason than being “too male, and too pale”, who had no role in anyone being discriminated against.
            And what is worse is that frequently, the minority that took the white man’s place, didn’t really want what they were given in the first place.

    2. It will never end. In part because affirmative action helps cause the very problems it purports to solve; it erodes standards for minority groups (and women) leading to a decline in their performance. Think of as being akin to raising a worker’s salary only to find that instead of working longer hours, he works fewer because he’s content with the same amount of money as before but with more free time. It also perpetuates distrust in the abilities of the ‘beneficiaries’ of affirmative action.(something which can’t be ascribed to latent white supremacy since Asians are often even more distrustful than white people are of affirmative action’s effects on labor quality).

      So as long as affirmative action is around to fuck things up, it will always be “necessary.”

  10. Interracial, gay marriages will be mandatory in order to receive health care and tuition.

  11. Meh.

    College is a scam anyway.

    Can we stop saying “people of color” and just say black people when discussing affirmative action? Asians want to prevent it from infecting the California public university system. Do Mexicans benefit from it at all?

  12. White privilege strikes again! The Supremes need to take care of things like this:

    http://tinyurl.com/oqdufe4

    Actually, this woman benefited from cute, young female privilege. I guarantee a white guy doing the stuff she was doing would have been promptly arrested. But SJWs will probably hold this up as proof of something that doesn’t exist.

    1. I don’t even think she’s that cute. But attractive, young, female, and upper-middle-class is a very good cop shield, regardless of race.

      Then again, being a cop is an even better cop shield. I personally was riding with a cop friend when he got pulled over for doing 95 in a 50 zone, at midnight, while somewhat drunk. He got a verbal chiding and some advice as to which backroads to take back to our hotel.

      1. In California, police (and their immediate families) have had their license plate numbers removed from the database used by red light cameras. Meaning they can run red lights with impunity and never get fined (unlike us peons). And I’ve heard that cops who drink and drive and are caught are almost never prosecuted. It’s like a form of Diplomatic Immunity.

        1. You’ve been misled.
          No such things happen.
          Do you think any DMV worker, who could provide proof that it was the case and wasn’t getting these immunities, would keep something like that to themselves?
          That’s the problem with conspiracy theories, if anyone not covered is in a position to find out, it will become public.

    2. If you appear to be middle class, friendly, and not a physical threat cops do not want to arrest you. If you are cute and female on top of that, yeah, it would be nearly impossible to get arrested. You can smell the sunshine attitude on this girl a mile away.

      Be rude, obscene, intoxicated, appear threatening or aggressive and you will be in cuffs before you can say WTF.

      It isn’t about being white.

      1. It’s just common sense–something that’s becoming increasingly less common. And I’m always polite and non-threatening when I deal with police. Not because I respect their authority, but because I know they can kill me on the spot and probably get away with it.

        1. That’s the elephant in the room with a lot of the police brutality cases. Many times the folks who (wrongfully) get their asses beat were crossing the line into abuse themselves. As much as it’s on the cops to not go full gorilla when they’re receiving snark and disrespect, its downright moronic to bait some stranger with practical immunity and a utility belt full of ways to make you cry.

    3. Funny how the idea of female privilege never even crossed her mind, even though all the statistics show gender plays a far bigger role in determining how the cops (and lawyers, and judges, and juries) will treat you than race.

      Talk about ignoring the obvious.

  13. You know, right and wrong don’t become wrong and right, even if everyone in government declares them to be. In fact, government moral and ethical values are so fucked up and so often obviously bad, that anything they say should be generally laughed at.

    Even with the gay marriage ruling, which I’m fine with (sentient beings legally capable of consent should be able to marry/contract with other sentient beings legally capable of consent), there’s something truly disturbing about everyone agreeing that some old people with a perverse love of black robes and Alabama marble can make decisions like this for us. Government really should have no role in such things and, in matters of cultural dispute, should be neutral and silent.

    1. I think people like us, people that believe in individuality and personal responsibility, lose sight of just how much most people are not like that. They really are herd animals. And they hate people like us.

      1. Well, then, I suppose they should round us up and put us in camps.

        1. It’s coming… it may be a month away or three decades away, but the inevitable collapse into tyranny will come.

          1. Sure looks like it. The foundation is already laid.

      2. Erich Fromm describes the person who is afraid of freedom and individuality as a sado/masochist who worships authority and strives to be an authority.

        The annihilation of the individual self and the attempt to overcome thereby the unbearable feeling of powerlessness are only one side of the masochistic strivings. The other side is the attempt to become a part of a bigger and more powerful whole outside of oneself, to submerge and participate in it.

        One gains also security against the torture of doubt. The masochistic person, whether his master is and authority outside of himself or whether he has internalized the master as conscience or a psychic compulsion, is saved from making decisions, saved from the final responsibility for the fate of his self, and thereby saved from the doubt of what decision to make.
        Erich Fromm, Escape From Freedom, 1941

    2. Nicely said Pro Libertate.

  14. People can be so silly about the Equal Protection Clause of the 14th Amendment. Everyone knows it was intended to protect same-sex marriage. Where did people get the idea that it was intended to stop racial preferences?

    1. You mean Equal Projection, right?

    2. Read the whole 14th.
      I don’t understand how anyone can rely on the overarching interpretation of such a small portion of an amendment whose complete text is geared towards making life as miserable as possible for anyone who participated in the Confederacy.
      Well, based on how proggies twist everything towards totalitarianism, I guess I can.
      Why do honest people let them?

  15. Look, affirmative action isn’t racist, because it’s only racism if there is systematic, institutional privilege. And colleges aren’t institutions or part of a larger system, and education isn’t a privilege, so…

    Well, uh, it doesn’t count if it’s directed at people who have benefited from a legacy of historical oppression. You know, like Asian-Americans.

  16. We’d better hope we can turn this ruling into another manufactured racism shitstorm, otherwise how the hell are we going to get any blacks to vote in 2016?

    /Das Leftoid

  17. Given that Kennedy sided with the liberals on the recent disparate case involving housing in Texas, I wouldn’t bet on a sensible decision on this one. Evidently Kennedy’s desire to “stand tall in Georgetown”, combined with his extreme libertinism, is getting the better of whatever conservative or non-sexually libertarian impulses he ever had.

  18. I have a feeling that it’s now going to be open season on 14A cases. It’s sort of ironic that a single phrase from a Reconstruction amendment is being shoehorned to justify a wide range of things by the courts, I just don’t trust them to apply it consistently.

  19. Good news – Bernie Sanders is catching up Hillary Clinton in the polls and gaining support from minorities. Even better news is that the SC can now making things up to grant the president’s wildest wishes, despite its purpose to keep his powers in check.

    AA might the law of the land, and Bernie Sanders will either drive Clinton further left or win the presidency himself. Bernie Sanders is going to be president, one way or another! Barry Sanders! WTF is wrong with this country.

    The libertarian moment is like the battle of Fredericksburg. The people who won that battle didn’t actually win the war.

    1. I guess we’d all better stock up on deodorant.

    2. I pray to Odin, Thor, Freyr, Freya, Tyr, Bragi, Baldr et. al. (shit maybe this is something I should ask Loki for some help with!) that Bernie Sanders can somehow gain the Democrat nomination. Even though a majority of Americans are caught in a “give me MY free shit” attitude, I think Bernie will simply reveal the true Leftism of the Democrats to much for the middle of the roaders who don’t think they have the “give me MY free shit” attitude. That is why Hillary would have to run to the center during the general election.
      I think Jeb Bush could even win if Bernie is the Democrat nominee.

  20. And the same justices who were insisting (during the gay marriage case) that everyone deserved to be treated equally, will now rule that…well…we didn’t really mean EQUAL equal, and some need to be a little “more equal” than others.

  21. Time to do what J. O’Connor didn’t have the balls to do…..
    Drive a stake through the heart of AA.

  22. The fifth circuit fucked up. Let’s see if the supremes want to compound their error.

    -jcr

  23. Google pay 97$ per hour my last pay check was $8500 working 1o hours a week online. My younger brother friend has been averaging 12k for months now and he works about 22 hours a week. I cant believe how easy it was once I tried it out.
    This is wha- I do…… ?????? http://www.online-jobs9.com

Please to post comments

Comments are closed.