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 ad- missions 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.
