SCOTUS Affirmative Action: Block and Punt

Today the Supreme Court ruled on a landmark affirmative action case, Fisher v. University of Texas Austin. What did they say?

Well, rather than making a final yes or no decision on racial preferences in college admissions, the Court decided to vacate and remand the ruling by the Fifth Circuit Court of Appeals on the grounds that it failed to apply the correct level of scrutiny to the case. “Vacating” is a different than “reversing”, which is when the Court not only gets rid of the lower court’s ruling but also substitutes their own. So while the Court found that the program must be held to strict scrutiny, it did not rule on whether or not it passed that test.

The big takeaway is that this means we’ll probably see this case again in 2-3 years, after the Fifth Circuit makes their new ruling and that new ruling is appealed to the Supreme Court. However, Justice Kennedy’s opinion does include a hint of what to expect the next time this issue is decided. He writes that “the reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” That’s a very high standard for the affirmative action program to meet, and it does not bode well for the future of race based admissions decisions.

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