The U.S. Supreme Court will conclude its 2015-2016 term in less than three weeks. As of this writing, 16 argued cases remain undecided. Among them is Fisher v. University of Texas at Austin, a major constitutional dispute over the use of affirmative action by a public university. A decision in that case could arrive as soon as this week.
Fisher has been knocking around the federal courts for some time now. In 2008 Abigail Fisher, a white applicant, was denied undergraduate admission to the University of Texas at Austin (UT). Claiming that UT's race conscious admissions policy denied her the right to equal treatment under the law, Fisher sued in federal court, charging UT with violating the Equal Protection Clause of the 14th Amendment. But Fisher lost in U.S. District Court in 2009 and then lost again when the U.S. Court of Appeals for the 5th Circuit upheld the school's policy as constitutionally permissible in 2011.
Fisher fared better before the U.S. Supreme Court, which in 2013 vacated the 5th Circuit's judgment and ordered that court to rehear the case. According to Justice Anthony Kennedy's 7-1 majority opinion (Justice Elena Kagan was recused and Justice Ruth Bader Ginsburg voted in dissent), the 5th Circuit erred in Fisher "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, the case should "be remanded so that the admissions process can be considered and judged under a correct analysis."
The correct analysis that the Supreme Court ordered the 5th Circuit to employ on remand is the tough level of judicial review known as "strict scrutiny." In brief, strict scrutiny says that when the government (including public universities) employs any sort of racial classification, that use of race must pass a two-part legal test. First, the use of race must serve a compelling government interest; second, the use of race must be narrowly tailored to achieve that compelling interest. Under current Supreme Court precedent, seeking to ensure diversity on campus counts as a compelling government interest. The question in Fisher is whether UT's affirmative action plan is narrowly tailored to achieve the government's compelling interest in campus diversity. Put differently, if UT has the option of promoting campus diversity via a less restrictive means than the one it is currently using, UT has failed the second part of the test and is supposed to lose the case under strict scrutiny.
Several months after the Supreme Court issued its decision, the 5th Circuit decided the case on remand, ruling once again in favor of UT's affirmative action policy. Shortly thereafter the Supreme Court once again decided to step in and review the 5th Circuit's judgment.
During the December 2015 oral arguments in what we might call Fisher II, Abigail Fisher's attorney, Burt Rein, stressed that the use of race by the government is a "forbidden tool," an "odious classification" that the government should only be allowed to employ as a last resort. Gregory Garre, the lawyer representing the University of Texas, maintained that it is both necessary and proper for a public university to take race into account in order to avoid "the decrease in student body diversity under the very race-neutral policies that our opponents are asking this Court to impose."
Boiled down, this case presents a clash of constitutional visions. Is the Constitution a colorblind document that permits the government to take race into account in only the very rarest of circumstances? Or does the Constitution necessarily allow race conscious government programs like affirmative action in order to ensure that equal protection includes equal opportunity?
This Thursday the Supreme Court is scheduled to release its next batch of opinions in argued cases. Keep an eye peeled for Fisher II.