Commentary on today’s Supreme Court decision in Fisher v. University of Texas seems to be divided between those who believe, as I do, that the ruling tightens judicial scrutiny of university affirmative action plans, and those who contend it will make no real difference.
Amy Howe of SCOTUSblog suggests that “affirmative action survives at least in theory…, but will be far more difficult to implement in practice.” Bill Mears of CNN reaches a similar conclusion, and affirmative action opponent Roger Clegg claims that the ruling will be “helpful” to litigators seeking to strike down racial preferences. By contrast, Gerard Magliocca believes that Fisher “said nothing,” and UC Irvine Law School Dean Erwin Chemerinsky concludes that it just reaffirms Grutter and other previous decisions.
I think the latter interpretation of Fisher is difficult to defend. It’s true that the Court did not hold that all affirmative action for diversity purposes is unconstitutional, and claimed that its decision was completely consistent with Grutter. On the other hand, as I explained previously, it ruled that affirmative action plans must be scrutinized by courts without giving any deference at all to the university’s judgment, and should be judged by the same standards as racial preferences in non-university settings (where the Court tends to be very tough). This is a major change from Grutter’s extension of a substantial “degree of deference” to university’s expertise. Essentially, in the opinion he wrote today, Justice Anthony Kennedy adopts the legal rule advocated in his Grutter dissent, where he took the majority to task for its “perfunctory” review of the University of Michigan Law School’s affirmative action program, and for “deferring to the law school’s choice of minority admissions programs.” Today’s decision holds that a university “receives no deference” on such questions.
To determine the [...]