Constitution Daily

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Constitution Check: Is “affirmative action” in constitutional trouble?

June 25, 2013 by Lyle Denniston


March in Washington. Source: Wikicommons user Joseluis89

Lyle Denniston looks at the specific judicial obstacle course that a college’s use of race must now run before gaining constitutional validity.


“The Supreme Court rightly ruled that tax-supported universities don’t deserve the benefit of the doubt from courts when they engage in race-based preferences and discrimination.   Instead, the High Court insisted on much tougher scrutiny for the University of Texas-Austin than the lower courts have given it so far, because the university is basing admissions decisions, at least in part, on students’ skin color.  The Court’s decision to send the case back for a more demanding review by the Fifth Circuit is bad news for UT-Austin.”

 – Meriem Hubbard, a principal attorney for the Pacific Legal Foundation, a conservative legal advocacy organization, in a press release commenting on the Supreme Court’s decision on Monday in the case of Fisher v. University of Texas.

“We are pleased that today’s decision preserves the vital principle that fostering racial diversity in education is a compelling interest critical to the future of the states and our nation. While we are disappointed the Supreme Court did not affirm the Fifth Circuit’s decision, we are also pleased that the Supreme Court confirmed that courts should defer to a university’s judgment on the educational benefits of a diverse environment, and made clear that a university need not exhaust other alternatives before considering race in admissions."

 -- Eric T. Schneiderman, state Attorney General of New York, in a press statement reacting to the same decision.


If the Supreme Court does not overrule a major constitutional precedent, but then writes a rigorous new formula for judging the same kind of case in the future, it is too much to say that the precedent is dead, but also too much to say that it is alive and well.   While professors, pundits and publicists will speculate at great length why it took the Supreme Court so long to decide the first major “affirmative action” case in 10 years, that debate will be a whisper compared to the wrangling over what that ruling actually means.

Someday, when one of the current justices’ official files get opened on the shelves of an archival library, America will learn the probably tortuous path that the Court seems to have taken to decide the case of Fisher v. University of Texas – the ruling it issued Monday after more than eight months of thinking about it and writing drafts.   But that history may not add much to clarify the ruling, when the opinion is examined on its own terms.

This is what compromise decisions at the Supreme Court can look like.   Lower courts decide cases in hopes of faithfully applying what past decisions by the Supreme Court tell them to do, and lawyers then take the case up to the justices to see if that happened.  But then a ruling emerges with a bit of this, and a bit of that, in new guidance on what the Constitution currently requires or allows.  That is what happened on Monday.

Some members of the Supreme Court wanted to start all over on “affirmative action,” and to declare that any use of race to shape government policy had to be struck down, in the same way and as thoroughly as the Court had ultimately struck down racial segregation in public schools.

But at least one member of the Supreme Court thought the tribunal had got it just right when, in 2003, it ruled that courts should go far toward accepting the “good faith” of public colleges and universities that they had to make some use of race in order to achieve the academic benefit of educating together students of different races and backgrounds.

However, neither of those, perhaps simpler, perspectives prevailed when the actual ruling in the Fisher case emerged.  The 2003 precedent, known as Grutter v. Bollinger, did not get overruled.  That decision had ruled that public colleges may sometimes use race as a factor in selecting the incoming class of students, if that is not the only factor.  But that precedent was not explicitly reaffirmed, and the references to it hardly amounted to high praise; rather, it was said to be just there, and left as is – for the time being, at least.

And yet the judicial aura enveloping that decision was not repeated.  The justices in that ruling had spoken with considerable respect for and the need to defer to the academic judgment of universities, about what they needed to do to encourage minority students to come and contribute to the educational value of multiculturalism.

When the court, speaking through an opinion by Justice Anthony M. Kennedy, crafted the specific judicial obstacle course that a college’s use of race must now run before gaining constitutional validity, the idea of respecting the “good faith” of university administrators was assigned a very subordinate rule.

The opinion dictated a two-step formula of judicial analysis.  In the first step, a court can accept that the university had concluded, in good faith, that it needed to take “affirmative action” to help it achieve “racial diversity.”   That, apparently, won’t be too hard for a university to do.

But then there is the second step: a penetrating analysis in which a court will give absolutely no deference to university judgment, but instead will apply the toughest constitutional standard there is: “strict scrutiny.”

In this second step, the university must show that it considered a variety of other ways to push up minority enrollment – without taking race into account, at all.   If there might be another way to do that, non-racially, then the university simply cannot install an admissions formula that includes race as a factor.  Period.  But if the university were to get beyond that obstacle, and show that it had no choice but to fashion a program that pays some attention to race, then it will have to clear another judicial obstacle: Is the reliance upon race absolutely necessary, and will it achieve multiculturalism on campus without the semblance of racial quotas or racial balancing?

Perhaps a university can successfully maneuver through that analysis.  But it won’t be easy, and, indeed, it was not intended to be easy.  This is a court that retains serious doubts about basing public policy on race, in any way.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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