In a straightforward opinion, the U.S. Supreme Court ruled that the University of Texas’ affirmative action program should be revisited by the Fifth Circuit Court of Appeals so that it can apply the correct legal standard. The opinion was a 7-1 decision written by Justice Kennedy. Justice Kagan abstained, Justices Scalia and Thomas concurred, and Justice Ginsburg dissented.
At the center of the case was Abigail Fisher, a white applicant who was denied admission to the University of Texas at Austin. She sued the school, alleging that the University’s use of race in admission decisions violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The Court did not answer the ultimate question in this case – whether the University’s affirmative action policies violated the Constitution, but rather held that the lower court did not use the correct legal standard in deciding that the University’s policies passed constitutional muster. The Supreme Court instead remanded the case back to the Fifth Circuit Court of Appeals so that the correct legal standard –strict scrutiny– could be applied.
To pass strict scrutiny, the University of Texas must show two things: First, that its affirmative action policy of achieving diversity in higher education is a compelling governmental interest. If this prong of strict scrutiny is met, then the Fifth Circuit must determine whether the University’s means chosen to attain diversity are narrowly tailored to the University’s diversity goal. This case will live on to see another day back in the Fifth Circuit.
Susan Parnas Frederick is Senior Federal Affairs Counsel for NCSL and works in NCSL’s Washington, D.C. office.