Bench Memos

Fisher v. University of Texas at Austin

I’ll be interested in what Roger Clegg and other experts on race preferences have to say, but my initial read is that today’s ruling in Fisher v. UT Austin doesn’t amount to much and largely punts the bigger questions down the road. [Addendum: On the Volokh Conspiracy, Ilya Somin argues that today’s ruling is a “significant victory for opponents of affirmative action in higher education” and that it is, at the least, “at odds with the dominant understanding of Grutter by most lower court judges, university administrators, and legal scholars.” And here is Roger Clegg’s take.]

Here is a quick summary of Justice Kennedy’s majority opinion (for seven justices):

1. Any official action that treats a person differently on account of his race or ethnic origin is inherently suspect and subject to strict scrutiny.

2. Under Grutter, courts will defer to a university’s educational judgment that the attainment of a racially/ethnically diverse student body is essential to its educational mission.

3. Under Grutter, a university must prove that the means it chooses to attain diversity are narrowly tailored to that goal. It receives no deference on that question. Narrow tailoring also requires that a reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity. A court must carefully inquire whether a university could achieve sufficient diversity without using racial classifications.

4. The Fifth Circuit did not perform the searching examination required of it. Instead, it held that the plaintiff could challenge only whether the university’s decision to reintroduce race as a factor was made in good faith. Further, it established a presumption that the university’s decision was in good faith, and it required plaintiff to rebut that presumption. But good faith does not forgive an impermissible consideration of race.

5. On remand, the courts below should apply the appropriate standard.

In concurring opinions, Justice Scalia and Justice Thomas reiterated their views that Grutter should be overruled.

In a brief dissent, Justice Ginsburg approves of the Fifth Circuit’s application of Grutter.

Justice Kagan was recused from the case.

Most Popular

White House

The Mueller Report Should Shock Our Conscience

I've finished reading the entire Mueller report, and I must confess that even as a longtime, quite open critic of Donald Trump, I was surprised at the sheer scope, scale, and brazenness of the lies, falsehoods, and misdirections detailed by the Special Counsel's Office. We've become accustomed to Trump making up ... Read More

An Idea for Student Loans: Get Rid of Them

Here is a three-part plan for something practical the federal government could do to relieve college-loan debt. Step 1: The federal government should stop making college loans itself and cease guaranteeing any such loans. Step 2: It should prohibit educational lending by federally regulated financial institutions ... Read More
White House

The Problem with the Mueller Report

So much for collusion. The media conversation has now officially moved on from the obsession of the last two years to obstruction of justice. That’s because the first volume of the voluminous Mueller report, the half devoted to what was supposed to be the underlying crime of a Trump conspiracy with Russia, ... Read More

Screw York Yankees

You are dead to me. You are a collection of Fredos. The cock has crowed, you pathetic sniveling jerks. The team I have rooted for since 1965, when I first visited the House that Ruth Built, where I hawked peanuts and ice cream a lifetime ago, watched countless games (Guidry striking out 18!), has gotten so ... Read More