Human Rights

U.S. Supreme Court Chips Away at Affirmative Action

A controversial Texas case is sent back for a new trial.

The U.S. Supreme Court has begun to chip away at race-based affirmative action in higher education, sending a Texas case back to the lower federal courts for a new trial but setting more difficult standards for educators to meet to keep race-based admissions policies.

In a 7-1 decision with a dissent by Justice Ruth Bader Ginsburg—who  compared the majority’s opinion to “ostriches” keeping their heads in the sand—the Court threw out two lower federal court rulings that supported the University of Texas’ use of race as a factor in college admissions.
The case, Fischer v. University of Texas at Austin, was brought by a young white woman who as denied admission in 2008. She sued but the courts sided with the university, saying that the last Supeme Court affirmative action ruling gave the university wide latitude to use race as a factor in admissions.

However, today’s opinion said the federal courts now had to use a tougher legal standard when reviewing affirmative action in higher education.

“The District Court and Court of Appeals confined the strict scrutiny inquiry in too narrow a way by deferring to the University’s good faith in its use of racial classifications and affirming the grant of summary judgment on that basis,” the majority wrote. “The Court vacates that judgment.”

That is a somewhat procedural argument but the bottom line is that the Court has made it harder for academic institutions to defend affirmative action.

“Only an ostrich could regard the supposedly neutral alternatives as race unconscious,” Ginsburg wrote, in her dissent, when discussing the case’s complex history where Texas created veiled policies that discriminated against people of color. “It is race consciousness, not blindness to race, that drives such plans.”

Given the case’s high-profile nature, it’s likely that it will now go back to the lower courts for a new trial—or rightwing law groups will find another case whose history seems to better fit this ruling’s standards. Either way, the rightwing effort to challenge the need for race-based university admissions is poised to continue. Affirmative action’s opponents say that it is no longer needed—not just in academia but also in voting rights.

A ruling in a major voting rights case that turns on that very question is expected later this week. In that case, the key question is whether the Justice Department can overrule changes in voting procedures in states and counties with histories of racial discrimination in elections.

Steven Rosenfeld covers national political issues for AlterNet, including America's democracy and voting rights. He is the author of several books on elections, including Democracy Betrayed: How Superdelegates, Redistricting, Party Insiders, and the Electoral College Rigged the 2016 Election, to be published in March 2018 from Hot Books.


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