June 24, 2013

The Supreme Court sends Fisher back to the lower court with instructions to take strict scrutiny much more seriously.

Here's the PDF of the opinion, which was 7-1. Instead of applying the "searching examination" of strict scrutiny...
... the Court of Appeals held petitioner could challenge only “whether [the University’s] decision to reintroduce race as a factor in admissions was made in good faith.” 631 F. 3d, at 236. And in considering such a challenge, the court would “presume the University acted in good faith” and place on petitioner the burden of rebutting that presumption. Id., at 231–232. The Court of Appeals held that to “second-guess the merits” of this aspect of the University’s decision was a task it was “ill-equipped to perform” and that it would attempt only to “ensure that [the University’s] decision to adopt a race-conscious admissions policy followed from [a process of] good faith consideration.” Id., at 231. The Court of Appeals thus concluded that “the narrow-tailoring inquiry—like the compelling-interest inquiry—is undertaken with a degree of deference to the Universit[y].” Id., at 232. Because “the efforts of the University have been studied, serious, and of high purpose,” the Court of Appeals held that the use of race in the admissions program fell within “a constitutionally protected zone of discretion.” Id., at 231.
IN THE COMMENTS: "Someone explain this to me like I'm ten, please and thank you." Okay. The Supreme Court has said that all race discrimination by the government — including well-intentioned, supposedly benign things like affirmative action — must be subjected to "strict scrutiny," which normally is said to require that the government have a "compelling interest" and that the discriminatory policy is "narrowly tailored" to serve that compelling interest. But in Grutter v. Bollinger, the narrow majority made it seem as though universities, if they used race as a factor in a holistic judgment about whom to admit, deserved some deference, and the Court of Appeals relied on that. Today, the Court seems to reject that reading of Grutter. Take into account that Fisher didn't ask for the Court to overrule Grutter, so that enterprise is pushed into the future. Also in the future, there's a pending case from Michigan about affirmative action. So the drama over affirmative action continues.

AND: Justice Ginsburg is the only dissenter, and she refers to her own dissenting opinion in Gratz. (Gratz was the companion case to Grutter. The majority upheld the University of Michigan Law School's "holistic" approach to affirmative action in Grutter but shot down the more mechanical methodology used in Gratz.)
I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious. See Gratz, 539 U. S., at 303–304, n. 10 (dissenting opinion). As Justice Souter observed, the vaunted alternatives suffer from “the disadvantage of deliberate obfuscation.” Id., at 297–298 (dissenting opinion).
That is, forthright, transparent affirmative action is preferable.
It is race consciousness, not blindness to race, that drives such plans [as Texas's automatic admission of the top 10% in every high school].
In a footnote there, Ginsburg quotes a professor (Thomas Reed Powell): “If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.” That is, only legalistic people think there's a way out of race consciousness.

MORE: Now, let's look at the concurring opinions. Justice Scalia has one short paragraph to underscore the fact the litigant in this case failed to ask the Court to overrule Grutter. He also joins the majority "in full." Justice Thomas has a much longer concurrence, which joins the majority but tips his hand: He's ready to overrule Grutter, and he wants to say "categorically" that a state may not use race at all in the admissions process.
Grutter was a radical departure from our strict-scrutiny precedents....

Attaining diversity for its own sake is a nonstarter....

[T]he educational benefits flowing from student body diversity — assuming they exist — hardly qualify as a compelling state interest....

There is no principled distinction between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits....

The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.

Slaveholders argued that slavery was a “positive good” that civilized blacks and elevated them in every dimension of life....

A century later, segregationists similarly asserted that segregation was not only benign, but good for black students. They argued, for example, that separate schools protected black children from racist white students and teachers....

Following in these inauspicious footsteps, the University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign....

Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates....

Tellingly, neither the University nor any of the 73 amici briefs in support of racial discrimination has presented a shred of evidence that black and Hispanic students are able to close this substantial gap during their time at the University....

The University admits minorities who otherwise would have attended less selective colleges where they would have been more evenly matched....

Moreover, the University’s discrimination “stamp[s] [blacks and Hispanics] with a badge of inferiority.” Adarand, 515 U. S., at 241 (opinion of THOMAS, J.). It taints the accomplishments of all those who are admitted as a result of racial discrimination.
Here, Thomas quotes John McWhorter: "I was never able to be as proud of getting into Stanford as my classmates could be. . . . [H]ow much of an achievement can I truly say it was to have been a good enough black person to be admitted, while my colleagues had been considered good enough people to be admitted."

ALSO: Finally, let's focus on how Justice Kennedy — writing for everyone but Ginsburg and Kagan — pushed the Court of Appeals back on its understanding of Grutter:
According to Grutter, a university’s “educational judgment that such diversity is essential to its educational mission is one to which we defer.” 539 U. S., at 328.
There's that deference. It's about finding diversity "essential." That's "an academic judgment" and judges "some, but not complete" deference is "proper" under Grutter. The lower courts "were correct" about that deference. The question is whether Grutter was correct to accept diversity as a compelling interest for Equal Protection Clause strict scrutiny analysis. Kennedy cautions (as Grutter itself cautioned) that diversity isn't just another way to say racial balancing.

Is there deference in determining whether there's narrow tailoring?
[A] court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes. 
But, again, it's not complete deference. Grutter demanded "a careful judicial inquiry" into the  university’s "serious, good faith consideration of workable race-neutral alternatives." But the Court of Appeals only looked at "whether [the University’s] decision to reintroduce race as a factor in admissions was made in good faith." It spoke of presuming good faith at one point as it disparaged its own ability to figure out what admissions policies are needed.
Grutter did not hold that good faith would forgive an impermissible consideration of race....
So here the Court of Appeals misunderstood Grutter. The remand isn't to determine if Grutter should be overruled, but to try again, applying a less judicially restrained version of Grutter. The word "overrule" does not appear in Kennedy's opinion, only in the 2 concurring opinions. The closest Kennedy comes to talking about overruling Grutter is at page 9, in discussing diversity as a compelling interest:
There is disagreement about whether Grutter was consistent with the principles of equal protection in approving this compelling interest in diversity. See post, at 1 (SCALIA, J., concurring); post, at 4–5 (THOMAS, J., concurring); post, at 1–2 (GINSBURG, J., dissenting). But the parties here do not ask the Court to revisit that aspect of Grutter’s holding.
Revisit. A euphemism. Obviously, the nudge to ask what was not previously asked is sharp enough.

62 comments:

I Have Misplaced My Pants said...

Someone explain this to me like I'm ten, please and thank you.

Anonymous said...

So this endorses the implementation of discriminatory practices if they are of "studied, serious, and of high-purpose"?

garage mahal said...

I don't know law and I haven't read the opinion, but according to Twitter....

Simon said...

It's NAMUDNO redux—a narrow opinion that kicks the can down the road.

joethefatman said...

So they send it back and essentially say Prove there's no other way to be diverse"?

Simon said...

BPM, it applies the Bakke-Grutter framework because the litigants didn't ask the court to overrule Grutter, and finds the fifth circuit's treatment under that framework wanting.

Michael Haz said...

An explanation for us non-lawyers, if you wouldn't mind.....

Ignorance is Bliss said...

bpm4532 said...

So this endorses the implementation of discriminatory practices if they are of "studied, serious, and of high-purpose"?

No. That is what the appeals court endorsed. The Supreme Court says that analysis is not good enough, and that the appeals court must reconsider, applying strict scrutiny.

Anonymous said...

Sounds like a message to go back to the lower court, retry or reconsider then another battle at the appeals level before re-petitioning the Supreme.

Ann Althouse said...

check the update for the requested explanation.

Will read the case and have more.

Mitch H. said...

So what, they kicked the can down the road, asking the Court of Appeals to do the job for them? Why didn't they fire that off months ago, instead of burning, what, half a year pondering it first?

Anonymous said...

where does the standard of "studied, serious, and of high-purpose" come from?

So if you study seriously an issue and conclude that a high-purpose is served by eradication of Jews, then it's OK to start denying them access to publicly funded services and programs?

Jay said...

The 5th Circuit's presumption that the University acted appropriately is rejected - "Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice, yet that is what the District Court and Fifth Circuit did here. "

Jay said...

"It [The Court] presumed that the school had acted in good faith and gave petitioner the burden of rebutting that presumption."

You can spin this as a win for the anti-affirmative action side.

edutcher said...

This is why I'm glad I'm a Poli Sci guy and not a lawyer.

I understand Vlad, no problem.

From what I can tell, joe's got it right - burden of proof on the University.

Chip S. said...

Does this mean that the lower court has to reconsider the arguments presented to it previously, or does Ms. Fisher have to burn some more money on legal fees?

Presumably it all winds up back at the SCOTUS anyway, right? So still more legal fees.

This is all going to come down to what the SCOTUS thinks about affirmative action as it's currently practiced by universities, right? So what's the great legal benefit from its continuing to play the coquette behind its demure senorita's fan?

Just call it a tax and be done with it.

Or a penalty, if Roberts doesn't like affirmativity.

Lem said...

"If you’re in the con game and you don’t know who the mark is … you’re the mark."

The truth is that democrats essentially use affirmative action as a vote making scheme, forcing everybody (under the threat of a racism charge) to spin a false narrative as truth in order to paint a rosy post-racial picture of a democrat = friends of the minorities as a way to cement permanent democrat majorities.

George Grady said...

In a footnote there, Ginsburg quotes a professor (Thomas Reed Powell): “If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.” That is, only legalistic people think there's a way out of race consciousness.

Of course, there is another way out of "race consciousness": Just stop it already! See, there is a way for the nonlegalistic.

jacksonjay said...


So what, they kicked the can down the road, asking the Court of Appeals to do the job for them? Why didn't they fire that off months ago, instead of burning, what, half a year pondering it first?

Immensely exciting! SCOTUS dodged another decision, how exciting!

Bob Ellison said...

Ginsburg is quite the dancer.

The Drill SGT said...

"Someone explain this to me like I'm ten, please and thank you."

Lower courts, when we said "Strict Scrutiny" and "Compelling Interest", that's what we meant, none of this squishy "good faith" crap.

Go back and do your jobs. Strict Scrutiny means the burden is on the University to prove it has a compelling interest, you dummies.

Bob Ellison said...

"Scrutiny" is code for "here's how we get to violate your inalienable rights."

n.n said...

Finally, some positive progress. We may yet recognize individual dignity as the a-tom of diversity.

Curious George said...

In my perfect world Jay writes all SCOTUS decisions. And they all end with "Idiot".

Nomennovum said...

Yum. Tasty nothing burger.

jimbino said...

When will someone finally attack on the basis that the maintenance of public universities and public parks and forests is a racist policy?

Whites and Asians are those who most benefit from expensive public universities like the University of Texas and from national parks like Yosemite, where you'll hardly ever see a Black or Hispanic face.

Both those institutions are prime examples of de-facto racial segregation. Public parks and public universities should be sold off or closed entirely so that disenfranchised Blacks and Hispanics could at least keep the tax money they spend on those White playgrounds.

Scott M said...

"Remember the other day when you were asking me about the definition of the word, 'anticlimax'...?"

mariner said...

Who was it that wrote, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Oh, yeah.

Him.

gbarto said...

JacksonJay, it is exciting. The unelected branch least accountable to the people declined to make law but gave lower courts refined guidance on how to assure that laws and institutions as the people have formed are fairly applied.

Numerous states have gotten rid of affirmative action by statute or initiative. Others have trimmed it. The people will decide on this - we don't need the Court to do so. What the Court did do today though was to assert that if someone wants to use affirmative action they need to do so with all due care and that good intentions aren't enough.

bagoh20 said...

So where is the diversity on campus? I don't see how varying degrees of melanin and a variety of surnames is doing that. It's seems to me like the university's goal is to get as many different colors of people to believe the same things as possible, and to question as little as possible. If diversity is so valuable why do they squelch it with such vigor?

Methadras said...

They chickened out. Pussies.

bgates said...

I was about to point out the problem in exempting "well-intentioned, supposedly benign" race discrimination by the government, when I saw Justice Thomas did it already.

Scott M said...

They chickened out. Pussies.

I don't know. My layman's ass is somewhat persuaded by gbarto's take above.

bgates said...

Ginsburg quotes a professor (Thomas Reed Powell): “If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.”

For example, if you managed to think about those words coming from Thomas Reed Powell's mouth without also thinking about Thomas Reed Powell's scrotum. Apparently, I have a legal mind.

garage mahal said...

In my perfect world Jay writes all SCOTUS decisions. And they all end with "Idiot".

Sounds like hell to me.

ricpic said...

Got it, Ginsburg. Race consciousness is good when it advantages blacks.

Anonymous said...

Ginsburg owes deference to university administrators. My prediction for Hollingsworth is that she won't owe voters quite so much.

Ignorance is Bliss said...

garage mahal said...

Sounds like hell to me.

Well, in a perfect world, you would be in hell, so maybe he's on to something.

ricpic said...

Since duh legacy ob slavery will never end the need for race conscious discrimination against whites will never end, right Ginsburg?

Zach said...

I'm struck by the forcefulness of the Thomas quotes, and I don't think it's stretching too far to see an autobiographical element. Recall that Thomas bitterly attached at 15 cent sticker to his Yale diploma, to show how valuable it had been to him.

Next to all that, Ginsberg's quotation of Thomas Reed Powell that “If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind” seems almost crass -- sure, this is something that overshadows some people's entire lives, but what's really important is that I found a mildly funny lawyer joke.

Carol said...

"I was never able to be as proud of getting into Stanford as my classmates could be

Ah, but he took it anyway, thank you very much.

Lem said...

To hear McWorter these days, Ill say he is not pleased to be quoted by Thomas.

Scott M said...

There is no principled distinction between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits....

Boom. Mic drop. Exit, stage left.

Methadras said...

Scott M said...

They chickened out. Pussies.

I don't know. My layman's ass is somewhat persuaded by gbarto's take above.


I can certainly understand the argument and it has a level of persuasion I can get behind, but this isn't a genteel society we are in currently. I think there needs to be a clear delineation made that people will not tolerate government 'fairness' in the name of race and that government has no place in determining racial hiring practices.

Methadras said...

Or acceptance practices. Left that out.

Michelle Dulak Thomson said...

Judging by Ginsburg's dissent, she would overrule Bakke in a heartbeat if she had the chance. She doesn't buy Justice Powell's "diversity" rationale any more than the universities do, but she (unlike them) is in a position that allows her to say so.

Of course the point of AA in higher education is to compensate members of historically disadvantaged racial/ethnic minorities, not to enhance the educational experience of the majority (which is what the "diversity" argument boils down to if you look at it at all closely). But since Bakke, it's been necessary to pretend that the reason we need more Black and Hispanic students in college is that, without them, the white majority will be be deprived of their valuable perspectives.

The ironic thing about this in connection with Top 10% programs like Texas's is that such programs really do provide diversity -- of background, of life experience. Also, alas, of preparation for college-level work. That was UT/Austin's beef. It wanted Black and Hispanic students, sure, but it wanted the best of them -- meaning the least "diverse," in any meaningful sense -- the kids who'd gone through good suburban schools and maybe weren't in the top 10% of their classes, but anyway were a lot better prepared than those other Black and Hispanic kids from Hicksville. That they were likely to provide much the same "perspective" as their white suburban classmates, while the kids from Hicksville might actually have something different to say, doesn't enter into the analysis, because "diversity" is a hoop to jump through, not an actual desideratum.

Anonymous said...

Yet another poor decision out of the Roberts Court. At this rate, I fully expect the justices to avoid the merits in both gay marriage cases. I don't think anything can top what they did in NAMUDO, but we'll see.

jacksonjay said...


gbarto, are you suggesting this is something new, the Court avoiding tough decisions? The SCOTUS doing what the SCOTUS often does isn't that exciting to me!

As I recall one of their earlier decisions on affirmative action held that it was AOK as long as it wasn't so damned obvious!

Rusty said...

Does somebody have the Cliff Notes on this? Supreme Court Decisions for Dummies?
I just fuckin' KNOW this is gonna be on the test.

Michael K said...

The diversity industry will not accept an overturning of affirmative action. Think of the thousands who would be put out of work ! What about Chicano Studies and African American Studies majors ! What would they do ?

Ward Connerly got Prop 209 passed to ban affirmative action and the UC is ignoring it.

In one generation, observes CSU San Jose political scientist Larry Gerston, California has gone from outlawing affirmative action and banning nonessential government services to illegal aliens to granting them free tuition subsidies, a change that “speaks to the growing pressure of Latinos on the legislative process.”

That from City Journal

Bob Ellison said...

AA is not about fixing what was done wrong or even about reparations. The job is not to make right what our fathers and mothers did wrong by somehow giving more to the sons and daughters of those done wrong.

It's about power.

Anonymous said...

Justice delayed is justice denied, and I am sick of these courts kicking the can down the road. White people, particularly males, are the subject of massive discrimination, even to the point now that the DOJ is suing companies for not wanting to be forced to hire black felons.

Idiot liberals are taking from producers and giving it all to non-producing parasites.

Bob Ellison said...

That's why the Court was wrong today, and Thomas was right. The Court is trying, in a politically defensive time for AA, to sustain the reasons for AA, which have morphed beyond recognition over the decades. Thomas is simply saying "discrimination is wrong".

traditionalguy said...

But wait, wait. A Univerity's Holistic decision to discriminate on race transcends law and rights of mere citizens... why it is infallible.

Mitch H. said...

garage mahal's personal hell is composed of slurs upon his intelligence, rather than punishment for his sins in life. A classic illustration of how men of a liberal-left mindset are infinitely more concerned about looking stupid, than being evil. Words and intellect, over deeds and virtue.

Good to know. Hell, the opposite construction doesn't even make grammatical sense - "knowing the good?" is the closest I can get to it.

White people, particularly males, are the subject of massive discrimination, even to the point now that the DOJ is suing companies for not wanting to be forced to hire black felons.

Bah. Something can be inequitable, without it being egregious, and I think you're making that stretch there. The discrimination is not so much massive, as niggling. The moral damage done to minorities in their own defense is far in excess of any substantive damage done to the rest of society. I hate the "white" construct, anyways. It perpetuates the notion of Us vs. Them. The solution to tribalism isn't a retreat into your own tribe, defined by your cultural enemies.

The whole point is to lure the aggrieved minority out of their dank cave of victimhood into the sunshine of common society, not to go sulking off to dig our own squalid spiderholes.

Oso Negro said...

bpm4532 said...
where does the standard of "studied, serious, and of high-purpose" come from?

So if you study seriously an issue and conclude that a high-purpose is served by eradication of Jews, then it's OK to start denying them access to publicly funded services and programs?



That would be the "fuck you, we do what we want" clause of the Constitution.

Scott M said...

The solution to tribalism isn't a retreat into your own tribe, defined by your cultural enemies.

The whole point is to lure the aggrieved minority out of their dank cave of victimhood into the sunshine of common society, not to go sulking off to dig our own squalid spiderholes.


Granted, but this all assumes that there is a a solution to tribalism outside a Disney script.

garage mahal said...

Well, in a perfect world, you would be in hell, so maybe he's on to something.

Most Christians go to hell, so that would be true hell for me. Maybe you're on to something.

Mitch H. said...

Granted, but this all assumes that there is a a solution to tribalism outside a Disney script.

True, tribalism isn't so much a problem as a dilemma, and thus probably doesn't have a solution. But there's a world of difference between managing a dilemma and exacerbating it.

Ignorance is Bliss said...

Scott M said...

Granted, but this all assumes that there is a a solution to tribalism outside a Disney script.

There's no solution, but they problems involved can be greatly reduced by reframing the concept of your tribe. That's the whole idea of the melting pot. Everyone in the country could be considered your tribe. That appears to have broken down.

Anonymous said...

Mitch H. asked...

So what, they kicked the can down the road, asking the Court of Appeals to do the job for them? Why didn't they fire that off months ago, instead of burning, what, half a year pondering it first?

My thought? First Kennedy was with the leftists. Then Thomas made him realize that while he'd be called a racist if you voted to end AA, it was the right thing to do. So Kennedy switched. But he still didn't want to be officially responsible for overturning Grutter. So Kennedy got Breyer and Ginsburg to switch as well, and impose "strict scrutiny" on University AA programs, in exchange for technically leaving Grutter in place.

PianoLessons said...

Nobody wants to be under the "strictest scrutiny" mandate....

This was a victory for those opposed to affirmative action as it has evolved.