Today the Supreme Court issued its decision in Fisher vs. The University of Texas — a decision that will result in a sea of litigation challenging the constitutionality of affirmative action efforts of public high education institutions across the country.
The decision is a short one, but a marvelous read on the case progeny, stemming from the Fourteenth Amendment and involving cases such as Brown vs. Board of Education and other notable Supreme Court landmarks. The idea is that affirmative action efforts are racially discriminatory, and since the time of the United States’ internment of Japanese Americans the standard for such conduct is a compelling state interest.
What I find troubling is the fact that the Government of Texas seems to have argued the worst case in support of its legislation. So much of the focus of the opinion is on race, and such is not the policy of the State of Texas. The policy was to admit the top 10% from public high schools to the University of Texas at Austin. Abigail Fisher wasn’t smart enough to accomplish this free pass to admission. 81% of the freshman class at UT could, mind you. The other 19% had their applications scrutinized with a number of factors, including the applicant’s race, a permissible action under current law.
Abigail argued that this resulted in a discriminatory impact against whites. As a response to the respondent, she says
Engaging in doublespeak, Respondents contend that race is only a “factor of a factor of a factor of a factor” in the scoring of applications yet seek to credit it for every non-Top 10% minority admission. They argue that African-American and Hispanic (but not AsianAmerican) students remain underrepresented based on state population data but deny that UT is pursuing proportional representation because their system is ineffectual in achieving it.
A discriminatory impact is not enough to qualify as a violation of the equal protection clause of the Fourteenth Amendment. You must also show an intention of discriminatory effect to declare a law unconstitutional. So, all the Government of Texas had to say was “So? You didn’t get automatically accepted. Tough luck. Be better in high school. Because it’s a hard fight for the remaining 19%, and we have many factors to consider.” But they didn’t. Or, they did and these arguments fell on deaf ears.
The Court sent the case back to the District Courts to reassess the case under the proper scrutiny with clarification of Strict Scrutiny provided directly from Justice Kennedy in the opinion of the Court’s 5 Justice majority (featuring 2 consenting opinions, joining). No analysis of Washington vs. Davis is featured in the opinion.
This leads me to believe that we have a long road of litigation ahead because of this “punt.” Does the distinction between de facto and de jure discrimination matter anymore? Is strict scrutiny supposed to be more lax?” This opinion I think makes more questions than it answers, which is not really what you expect from a High Court. This is what happens when a Court “punts a case” though. Now we have to wait to know the law of the land.