In a decision with its landmark status already undercut by the justices' next move on affirmative action, the Supreme Court decided it would punt on the case of 23-year-old Abigail Fisher and the University of Texas at Austin, sending it back down to the lower court, with Justice Ginsburg as the lone dissenter. Fisher had argued she was not accepted because she is white, and there was a sense that the Court might have limited racial acknowledgments in college admissions — but the nation's highest tribunal mostly put off a broader ruling as it kept the nation in wait for at least one more day on several more high-profile cases.
In Fischer v. Texas, Justice Kennedy wrote the majority opinion and came to the conclusion that the Fifth Circuit didn't examine the case of affirmative action thoroughly enough:
The Court concludes that the Court of Appeals did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and Regents of Univ. of Cal. v. Bakke ... Because the Court of Appeals did not apply the correct standard of strict FISHER v. UNIVERSITY OF TEXAS AT AUSTIN Opinion of the Court scrutiny, its decision affirming the District Court’s grant of summary judgment to the University was incorrect."
The cases Kennedy is referring to there are previous cases the court took in affirmative action. One, where the University of California's quota system of race admissions was found unconstitutional and the other, Grutter where the Supreme Court upheld affirmative action policies under the premise that there's a compelling case for student body diversity. In plain English, Kennedy states that the university has to make a compelling case that diversity is consistent with Grutter and hints that the current system UT Austin has, which involves awarding bonus points for race, may need to be examined further:
Once the University has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation.
Even with those bonus points, however, it's unlikely that Fisher would have gotten in. As ProPublica's Nikole Hannah-Jones explained "university officials claim in court filings that even if Fisher received points for her race and every other personal achievement factor, the letter she received in the mail still would have said no."
The case has been "remanded" or sent down to the Fifth Circuit. Meaning there's more legal battles for both sides ahead.
The first major sign from the court that it looked like we weren't going to get a major decision in Fisher came five months after the oral arguments, when the justices announced that they were going to hear the case of Michigan's Proposal 2, which allowed for that state's public universities to eliminate preferential treatment to any individual group based on race, skin color, or ethnicity. This came less than a decade after another affirmative action case concerning the University of Michigan. The conservative justices, as ProPublica's Hannah-Jones explained to NPR, appear to be pushing for sweeping change on race-blind admission, and their doubling down with the new Michigan case seems to indicate that the Fisher case didn't provide the right opportunity.
So today's ruling is something of a prelude to Schuette v. Coalition to Defend Affirmative Action — the formal name for Michigan's Proposal 2. The voter referendum was added to the state's constitution but quickly became the subject of lawsuits and endless delays before being struck down twice by the U.S. 6th Circuit of Appeals — first by a 2-1 vote in July 2011, and then by an 8-7 vote in November of last year. The Supreme Court's Michigan case has the potential to be more sweeping, as it would affect every public school in Michigan — and perhaps sets a precedent across the country — while Fisher's suit would have only applied to students at the University of Texas's main campus in Austin.