The Corner

Fisher Decision Tightens the Standards for Affirmative-Action Programs

Today’s narrow opinion in the Fisher v. University of Texas affirmative-action case basically tells the Fifth Circuit Court of Appeals it must apply a strict scrutiny standard when evaluating the university’s admission program. In other words, the university must first establish that no race-neutral method can be found before it begins using considerations of race in admissions.

The Surpreme Court has effectively tightened the standard under which affirmative-action programs are considered valid, which was originally established in its 5-to-4 Grutter opinion by now-retired justice Sandra Day O’Connor in 2004.

Why didn’t it go further? In part, because the plantiffs in the case didn’t ask for more. During oral arguments, Justice Sonia Sotomayor asked Bert Rein, student Abigail Fisher’s lawyer, if he thought Grutter needed to be “gutted.” He explicitly said it should be “corralled,” instead.

Today’s Fisher decision is precisely that, with a hint that more “corralling” may be coming. The Fisher case will more than likely return to the Supreme Court in a year or so, when the court will look to see if the Fifth Circuit has properly applied its strict-scrutiny standard – and then finally decide if any affirmative-action plan can pass such a standard.


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