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Affirmative-action ruling: ‘It leaves the door open’

supreme court
“[The Supreme Court is] just not ready to decide either way whether affirmative action is constitutional,” opined University of Minnesota law professor Dale Carpenter.

Six months after a decision was expected, the U.S. Supreme Court Monday handed down a ruling in one of the term’s most closely watched issues that did not even approach the merits of the case.

Without weighing in on the constitutionality of affirmative action, the court sent the case back to the U.S. Court of Appeals for the Fifth Circuit, which previously upheld the University of Texas’ admissions program.

While advocacy groups on both sides of the issue declared victory within minutes, legal scholars were quick to note that the 7-1 decision decides nothing but can be read favorably by both proponents and opponents.

carpenter photo
MinnPost photo by James Nord
Dale Carpenter

“This decision is written in such a way that both sides can cite it going forward,” said constitutional scholar Dale Carpenter, a professor at the University of Minnesota School of Law. “It’s a punt at best.”

Or a compromise brokered to end an imagined 9-month-old stalemate between the court’s liberals and conservatives.

“I really don’t think this decision resolves anything,” Carpenter added. “It leaves the door open. I have no idea why they took so long to tell us nothing.”

In fact, he added, odds are that after the appellate court reconsiders the case, brought by a white Texas woman who contends she was denied admission to the University of Texas-Austin because of her race, the losing party will petition the court to hear it again.

‘Not ready to decide’

It’s not likely they’d agree. “They’re just not ready to decide either way whether affirmative action is constitutional,” opined Carpenter.

Indeed the high court has options for issuing orders that don’t resolve all three big pending cases in which rulings are expected soon. Quipped Carpenter: “Is this going to be a trend this week? Taking big cases and then not deciding them?”

In both cases involving same-sex marriage the justices could find that the parties before the court have no standing. They could declare the California case “dismissed, improvidently granted,” which would leave intact a federal appellate decision overturning the same-sex marriage ban.

Or they could conclude that the backers of Prop 8, the constitutional amendment overturning gay marriage in that state, aren’t proper parties to the case. In that case, the ruling of the trial court, which also overturned the ban, would stand. 

In the challenge to the federal Defense of Marriage Act (DOMA), they can decide that the decision of President Barack Obama’s administration not to defend the law means there is no proper party in that case, either. Such a decision would leave standing a district court decision that the federal government cannot discriminate against married same-sex couples.  

The other hot potato yet to be addressed concerns the Voting Rights Act. In that case, the justices could take a route similar to the one they chose with affirmative action, sending the case back down the chain for further review. 

A compromise with a message

Marie Failinger

A constitutional law professor at Hamline University’s School of Law, Marie Failinger, agreed that the decision was “absolutely” a compromise. But in her opinion it’s one intended to send a serious message to the university and to lower courts that they had to do better adhering to past decisions on the issue.

Failinger’s plain-English read of what the justices are saying to higher ed: “We really meant it when we said you have to have evidence that you tried other things besides race.”

And to courts: “You didn’t really apply the standard we gave you.”

Written by Justice Anthony Kennedy, the 13-page decision confirmed that use of race in admissions must be given “strict scrutiny” by courts to determine that it is “narrowly tailored.”

The appellate court has an obligation to apply that scrutiny to the facts of the Texas case, the court found. Under past decisions, because the court has found compelling educational justifications for diversity at public colleges and universities, it has allowed race to be taken into account as one of a number of factors considered.

Means must be narrowly tailored

“Once the university has established that its goal of diversity is consistent with strict scrutiny … there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation,” the opinion states. “The university must prove that the means chosen by the university to attain diversity are narrowly tailored to that goal. … 

“The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If ‘a nonracial approach … could promote the substantial interest about as well and at tolerable administrative expense’ then the university may not consider race.”

Justices Antonin Scalia and Clarence Thomas joined in the majority opinion but said they would have opted to strike down affirmative action if explicitly asked to do so by Abigail Fisher, the plaintiff in the case. 

Long vocal on the topic, Thomas issued a 20-page concurrence declaring the university’s arguments in defense of the program “no more persuasive than they were 60 years ago” in Brown V. Board of Education. “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,” he insisted.

Ginsburg’s dissent

Justice Ruth Bader Ginsburg issued the lone dissent, insisting that affirmative action at public institutions is constitutional. The University of Texas, she wrote, conducted “a yearlong review through which the university reached the reasonable, good-faith judgment that supposedly race-neutral initiatives were insufficient to achieve, in appropriate measure, the educational benefits of student-body diversity.”

Justice Elena Kagan recused herself because she worked on the case while at the U.S. Department of Justice.

The ruling isn’t likely to have any immediately impact locally. Attorneys at the University of Minnesota, which does include race among a long list of factors that can be considered during admissions, are studying the decision carefully, according to a university spokesman.

Kaler vocal on value of diversity

U of M President Eric Kaler has been vocal on the topic of campus diversity and has spoken about the university’s obligation to help ensure that students of differing races, ethnicities and socioeconomic statuses leave Minnesota’s K-12 system ready for college.

MinnPost photo by James Nord
Eric Kaler

“The diversity of experiences, beliefs, cultures, and perspectives that students from across our state’s communities, as well as from other parts of our country and our globe, significantly enriches our campus communities,” Kaler said in a statement in reaction to Monday’s court ruling. “This diversity enhances the educational and co-curricular experiences of all of our students and ensures that our graduates are prepared to positively contribute to our society and succeed and thrive in a global economy.”

Finally, the decision is likely not the final word on the topic. Ready or not, the court is scheduled to hear oral arguments in the fall in a challenge to an amendment to Michigan’s constitution barring affirmative action in admissions in public universities there. 

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Comments (4)

  1. Submitted by Dennis Tester on 06/25/2013 - 10:02 am.

    Kaler’s right

    “The diversity of experiences, beliefs, cultures, and perspectives that students from across our state’s communities, as well as from other parts of our country and our globe, significantly enriches our campus communities,”

    And none of that has anything to do with race. The only people who think it does are racists. To believe that Barack Obama’s daughters should be admitted to the school of their choice because of their race is absurd.

  2. Submitted by B. Dalager on 06/25/2013 - 12:20 pm.

    Holy moly

    You really couldn’t find a better picture of Professor Carpenter? You had to use SADDEST CARPENTER EVER?

  3. Submitted by Ray Schoch on 06/25/2013 - 06:10 pm.

    In principle

    Mr. Tester (and Justice Thomas) are, I believe, correct, at least in principle.

    Unfortunately, we don’t live “in principle.” We live in the real world, where race, gender, sexual proclivities, and other factors that should have no bearing at all on decisions of whether to admit someone to a university, hire someone for a job, or allow someone to do this or that, continue to have a significant impact on the decisions made by institutions and individuals whose educational, occupational or social positions allow them to make those decisions. In that real world, racism still exists, as does sexism, as do sexual, ethnic, cultural and other prejudices that have demonstrably influenced those kinds of decisions around the country.

    I would say we’ve made some progress, and I have no idea if I’ll live long enough for the society to have genuinely reached a point where affirmative action truly is unnecessary. It will be worth celebrating when we get there, whether I’m around to take part in the party or not, but I don’t think we’ve reached that celebratory point just yet.

    • Submitted by Neal Krasnoff on 07/24/2013 - 04:47 am.

      re: In principal

      If there is a white male exception to the equal protection clause, it follows there should be a black male exception to the Fourth Amendment. To quote Mr. Schoch: “We don’t live in principle”.

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