LAW & EDUCATION
The Supreme Court and Affirmative Action Revisited
Two years ago, I wrote a column concerning the U.S. Supreme Court’s decision in Fisher v University of Texas at Austin (Education Update Sep/Oct 2013). As you may recall, Abigail Fisher, a Caucasian, was rejected for admission to the University of Texas’ 2008 entering class and contended that her academic record was superior to others who were admitted. She sued the University alleging that her rejection violated the “equal protection clause” of the 14th Amendment to the U.S. Constitution. The Supreme Court, in 2013, instead of ruling on the merits and either allowing or eliminating affirmative action from the admission process at the University of Texas, concluded that the lower court had not adequately applied the correct standard of strict scrutiny in rending its decision, and remanded the case back to the Fifth Circuit Court of Appeals (the previous Court handling the case) for further proceedings.
On December 9, 2015, the case was reargued before the Supreme Court and the Court raised a number of pertinent questions, most of which, from a review of the transcript of the oral argument, did not appear to have been answered to the satisfaction of the Court. All of the Justices asked questions (except for Justice Thomas, who is known for remaining silent during oral argument, and Justice Kagan, who recused herself as she had been involved in the proceedings before her appointment to the Court).
During the oral argument, Justice Scalia remarked “There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less advanced school … a slower-track school where they do well. One of the briefs pointed out that … most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re … being pushed ahead … in classes that are too too fast for them. I’m just not impressed by the fact that … that the University of Texas may have fewer. Maybe it ought to have fewer. And maybe some - - you know, when you take more, the number of blacks, really competent blacks admitted to lesser schools, turns out to be less. And … I don’t think it … stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.”
However, it should be noted that Justice Scalia was not alone in admitting to the complexity of the issues raised. Although only Justice Scalia was outspoken, all of the Justices who commented raised serious questions regarding the need for continued use of affirmative action as part of the holistic approach being taken by most colleges in determining their entering classes. Although the issues had been well briefed by the parties, and over 90 Amicus Briefs had been submitted, it was clear that the Justices were carefully questioning the arguments being made and that they each had their own issues with the need for the continuation of affirmative action. At this point, it is unclear as to the ultimate decision of the Court expected this coming spring.#
Arthur Katz is of Counsel to Otterbourg P.C.