Columbia Law School Professors React to Supreme Court Affirmative Action Ruling

New York, June 23, 2016—In a surprise win for affirmative action, the Supreme Court on Thursday ruled in Fisher v. University of Texas in favor of the University, stating that the school’s race-conscious admissions program is lawful under the Equal Protection Clause. The 4-3 decision upholds the Fifth Circuit ruling. 

This was the second time the Court considered the case filed by Abigail Fisher, a white woman who challenged the University of Texas’ consideration of race in admissions, following her rejection from the school. The school automatically admits Texas students in the top 10 percent of their high school class; the remaining spots—about 25 percent of the incoming university class—are filled by considering an applicant’s “Academic Index,” including SAT scores, as well as “Personal Achievement Index,” which includes race.

The case was argued by U.S. Solicitor General Donald Verrilli, Jr. ’83, who will step down as the nation’s top appellate lawyer tomorrow.

Three Columbia Law School professors who are leading experts on affirmative action and civil rights offer their reactions to the ruling.

Professor Jamal Greene:

“This result is genuinely shocking. For the first time, Justice Kennedy votes to uphold an explicitly race-conscious government program, affirming principles from which he dissented 13 years earlier. This might be some evidence that at least some members of the Court are seeking to lower the political temperature by not overruling or significantly challenging prior case law.”

[Greene, a vice dean, is a constitutional jurisprudence expert. His teaching and research interests include constitutional law, constitutional theory, the First Amendment, federal courts, and comparative constitutional law. Prior to joining the Law School faculty in 2008, Greene was a law clerk to Judge Guido Calabresi of the U.S. Court of Appeals for the 2nd Circuit from 2005 to 2006. He also served as a law clerk to now retired U.S. Supreme Court Justice John Paul Stevens from 2006 to 2007.]

Professor Olatunde Johnson:

“1. The Court in a relatively short (and sweet if you think affirmative action is important) [decision] reaffirms the compelling interest in pursuing diversity in higher education. Striking is that Justice Kennedy who writes the majority opinion embraces this interest more strongly than in past opinions. Justice Kennedy dissented in Grutter but in Fisher II quotes Grutter that "enrolling a diverse student body 'promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.'" (Maj. opinion at 12) Justice Kennedy also draws on Grutter's language that "'student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.' " (Id.)

2. The Court provides its most extensive articulation yet of the concept of "critical mass". The majority rejects the plaintiff's argument that the University's effort to enroll a "critical mass" of minority students functions as a quota. Justice Kennedy finds that the University's program survives the heavy burden of strict scrutiny. Since quotas are prohibited, Kennedy writes, the University "cannot be faulted for failing to specify the particular level of minority enrollment at which it believes the educational benefits of diversity will be obtained." (Maj opinion at 15).  Justice Kennedy goes on to explain that the University articulated concrete and precise educational goals (including reducing stereotypes, preparing students to live in a diverse society, and allowing a robust exchange of ideas and perspectives), and extensively documented the limits of the Texas 10-percent race-neutral alternative in achieving the University's diversity goals.  

3. The Court has important language affirming the importance of allowing universities to conduct "holistic review" in deciding who should be admitted. The Court notes the limits of the Texas Ten Percent plan in achieving the full-range of diversity, and that the Plan is built on a racially segregated K-12 school system.

4.  Justice Scalia's passing likely influenced the outcome of this case (4-3, with Kagan recused). Justice Scalia dissented from Grutter and would likely have dissented here. While Justice Kennedy was also in dissent in Grutter, observers predicted that he could be the swing vote in this case. The decision in Fisher I showed that he was willing to allow some consideration of race and ethnicity in admissions. Justice Alito (joined by JJ. Thomas and Roberts) seems excised by the majority decision. He writes a detailed dissent that is more than twice as long as the majority's decision arguing that the Equal Protection Clause demands race neutrality, and that UT's diversity goals are too amorphous to pass the strict scrutiny which the Equal Protection Clause demands.”

 [Before joining the Columbia Law School faculty in 2006, Johnson served as counsel to U.S. Senator Edward M. Kennedy on the Senate Judiciary Committee; as a consultant on racial justice matters at the ACLU; and as a litigator and legislative advocate at the NAACP Legal Defense and Educational Fund. Johnson clerked for Judge David Tatel of the U.S. Court of Appeals for the District of Columbia Circuit and for Justice John Paul Stevens on the U.S. Supreme Court.]

Professor Susan Sturm:

"Justice Kennedy's milestone opinion upholding a race-conscious affirmative action plan will produce a collective sigh of relief among selective higher education institutions that consider race in admissions as a means to achieve diversity...Some of the uncertainty about diversity's validity and the meaning of critical mass—and accompanying risk avoidance invited by Fisher I—has been reduced. 

One question we are left with is whether these institutions will treat the Fisher II decision as a legal reprieve, and thus undercut the motivation to address the deeper structural issues that affect achievement of the diversity goals upheld by the Court. Perhaps the greater clarity provided by the Court will reduce the distraction and cost associated with litigation, and enable higher education institutions to focus greater attention on how to revitalize our metropolitan regions, our economy, and our politics, and on reducing the racial divides that have limited our capacity to do so."   

[Sturm is founding director of the Center for Institutional and Social Change, and a leading expert in affirmative action, diversity and inclusion, and institutional change. She has written extensively on the Fisher case and was the principal author of an amicus brief filed on behalf of the University of Texas. Most recently, she authored a major paper commissioned by the Yale Law Journal in an effort to address its diversity challenges and identify ways the Journal could do more to foster an inclusive community.]

Read the full Supreme Court opinion here.