Supreme Court

Today at SCOTUS: Affirmative Action on Trial

The Supreme Court hears arguments in Fisher v. University of Texas at Austin


The U.S. Supreme Court will hear oral arguments today in the closely watched case of Fisher v. University of Texas at Austin. At issue is whether that public university's use of race as a factor in determining undergraduate admissions violates the Equal Protection Clause of the 14th Amendment.

Credit: C-SPAN

This will be Fisher's second time before the high court. The justices first considered the case back in October 2012. Eight months later, in June 2013, the Court issued a highly anticlimactic opinion which avoided reaching the constitutional merits and instead sent the case back down to the lower court for further proceedings. Why? As Justice Anthony Kennedy explained in his majority opinion, the U.S. Court of Appeals for the 5th Circuit erred in its Fisher ruling "by deferring to the University's good faith in its use of racial classifications." But "in fairness to the litigants and the courts that heard the case," Kennedy continued, Fisher should "be remanded so that the admissions process can be considered and judged under a correct analysis." The correct analysis the Court had in mind is the exacting standard of judicial review known as strict scrutiny, which is the toughest version of judicial review employed by the courts. Strict scrutiny says that when the government (including a public university such as UT) employs a racial classification, that use of race must 1) serve a compelling government interest, and 2) be narrowly tailored to achieve that compelling interest.

Several months after Kennedy issued that instruction, the 5th Circuit issued its decision on remand. Once again, the 5th Circuit upheld the school's affirmative action plan. Now, once again, the Supreme Court will review the constitutionality of the UT plan for itself.

In essence, the justices are weighing two competing interpretations of what the constitutional guarantee of equal protection means. One side holds that the Constitution is a colorblind document that forbids the use of racial classifications by the government in all but the very rarest of cases. The other side holds that race conscious programs can be a necessary and proper means of ensuring that equal protection includes equal opportunity.

To get you up to speed for today's oral arguments in this high-profile case, here's a selection from Reason's long-running coverage of the legal debate over affirmative action and the Constitution.

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  1. Blacks require a helping white hand to get anywhere in life, and if you disagree then you're racist.

  2. "I think that's the number one thing that's missing, I think, in the game is speed. You know, with the need for minorities, you can help yourself ? you've got a better chance of getting some speed with Latin and African-Americans.

    "I'm not being racist," he added. "That's just how it is."

    1. "Look at that little monkey run!" he added.

    2. God love Dusty.

    3. +1 fleet of foot

  3. Race conscious programs can be a necessary and proper means of ensuring that equal protection includes equal outcome.

    1. Old, fat Jews should have equal outcomes in trying for NFL positions.

      1. If they can get some vacation time from their jobs running the world.


  4. The other side holds that race conscious programs can be a necessary and proper means of ensuring that equal protection includes equal opportunity.

    Unless you're Asian.

    1. There is no place for such rational thinking at a university.

    2. Rissen, we no need you herping hend.


    3. The Asians are the problem.
      "In other words, it's hard to realize that you can be both an oppressor and an oppressed person."

      1. This obsession with race is just completely fucking alien to me. I went to school in the early 90s and there was none of this shit about "safe spaces" or "my professor doesn't look like me". These smug little assholes with their "sit-ins" are worsening race relations and are too stupid to recognize it.

        1. I am thinking they are obsessed with race because they are actually racist and just project their feelings onto others.

  5. Equal opportunity does not guarantee equal outcomes.

    Equal rights do not guarantee equal opportunity.

    1. Which is why the colleges go with platitudes about "diversity" instead.

    2. Much like 'freedom', equality has become obsolete in progressive thinking. 'Mere"'freedom and 'mere' equality are now reactionary. Much how even saying 'freedom of speech' now gets one labelled as a right winger, ironically, so too I expect they will soon drop the pretense of 'equality' and just add that one to the bin of old ideals to be discarded even in name.

  6. I guess the alt-text wasn't white enough to get in.

  7. At issue is whether that public university's use of race as a factor in determining undergraduate admissions violates the Equal Protection Clause of the 14th Amendment.

    Of course it violates the 14th Amendment. But the court will allow it anyway. Because FEELZ and FYTW.

  8. Was not South African apartheid a system of racial preferences?

    1. Hmm. I'd say no. Complete exclusion of certain races from certain jobs and parts of society is rather different in function and effect.

      1. Not if you are one of the people who loses out on a job due to racial preferences it isn't.

      2. A difference of scale rather than essence: if I have to be 20% better than a black or hispanic applicant to get a job, that's a partial exclusion; in fact one could describe complete exclusion as simply raising that percentage to infinity; much like how raising the tax for a good to an absurdly high level is, in effect, a ban.

        In principle, it is the same, just a milder degree.

  9. Well, this depends on what approach you take to the 14th amendment - will we apply the logic (such as it is) of Supreme Court precedents, or will we go back to first principles and try to apply the original understanding?

    Going by Supreme Court precedent, looking at their very broad list of suspect classifications - not just race, but sex, legitimacy, sexual practices, etc. - it would look really ungracious to allow discrimination against white people, especially if you're pretending to use a "strict scrutiny" classification. And precedents make clear that state universities are basically subject to judicial supervision.

    Now, if we go by the original understanding, I think we'll find that it wasn't meant to protect white people, but to set the rights of white people as the standard by which everyone else's rights are measured. The contemporaneous Civil Rights Act of 1866 (which the 14th Amendment was meant in part to constitutionalize) said that with regard to basic rights, all native-born citizens (including ex-slaves) would have the same rights as white persons. The need to *protect* white persons doesn't seem to have come up.

    But on a more basic level, I don't think the 14th Amendment was meant to apply to state-run schools. But I suppose that ship has left the station.

    1. So if you go by precedent, and the Civil Rights Act of 1964, then I say affirmative action should be struck down.

    2. That's kind of a weird way to look at the original intent. At the time the purpose was to ensure that the rights of former slaves and already free blacks were protected. But it certainly wasn't intended to exclude white people as a class from its protections. The only reason it didn't come up was because, in theory at least, white people already had the privileges and immunities of citizenship.

      1. This part I agree with.

        And the ratifiers were informed that these privileges and immunities included all of the first eight amendments.

        (Which I've been trying to argue - they meant to "incorporate" all of the first eight (or maybe nine), not just those rights the courts happen to like)

        But I'd suggest that going to a state-run school wasn't among the privileges and immunities the ratifiers were thinking of.

        The amendment worked a revolution in federalism by empowering Congress (and the federal courts) to enforce basic civil rights in the states. But to your average Northern white guy (the folks who got the amendment ratified), the practical impact *for them* would be minimal, since their state laws already protected their rights - the issue was whether minorities (especially ex-slaves and white dissenters in the South) should enjoy these rights.

        And that part goes beyond simply making sure that everyone's rights are the same - for instance, the states can't abolish jury trial simply because they're abolishing it for white and black alike. They must have it for everyone. So when reformers try to exempt their states from the bill of rights, that's unconstitutional even if they're acting in a strictly non-racist way.

        It's just that when we get to the operation of state-run schools, I don't see that as part of the bill of rights, but as part of those policies states get to make for themselves.

  10. Be nice if they stopped calling it "race-conscious" and just called it 'racist.' Ya know, what it actually is.

  11. Should this case result in the SC stating affirmative action should be outlawed, it will be routinely ignored.
    It will be another of those court decisions that goes in the direction of conservative ideology and, thus, not worthy of consideration, unlike liberally approved decisions that will become, unequivocally, "the law of the land".
    The voters of California outlawed preferences and it didn't slow down the SJW's one bit.
    They just moved their discrimination into secret decision making processes and, as long as you still have judges that agree with the principle of preferences, no lawsuit can pierce those "secondary criteria" deliberations that miraculously arrive at the desired "diversity".
    Since the Founders knew that no two people could ever be truly "equal" they, wisely left that requirement out of the original Constitution and Bill of Rights.
    The injection of the term in the 14th has caused so much consternation over its inclusion that sane people should have demanded its repeal, long ago. They did it with the 18th for being far less problematic.

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