On Monday, June 24, 2013, the Supreme Court (the Court) handed down its much-anticipated ruling on the Fisher v. University of Texas (UT) Affirmative Action case, which sought to strike down legal race-conscious considerations in college admissions. Because of the high stakes involved for maintaining diversity and inclusion efforts, many state institutions of higher learning were watching with bated breath. And although the University of California (UC) wrote an amicus brief in support of the University of Texas at Austin in this proceeding, the UC system’s own subjection to Proposition 209 all but ensured the Fisher decision would have little if any direct bearing on UC admissions policies. For many, the Court’s decision to remand or return the case to the lower court signified a victory of sorts. As of Monday, the 24th, UT Austin would not be required to dismantle its current admissions policies, and by extension, other state schools were similarly spared. All affected, effectively, could exhale! At least until the next challenge to the legality of race-conscious consideration in college admission reaches the Court. And we can bet it will happen.
It is important to point out that since the Court did not rule in favor of Fisher, a temporary victory for employing race-conscious factors in holistic approaches to admissions in state institutions of higher education could be enjoyed for supporters of UT Austin. At the same time, very significantly, the Court’s decision was not without consequences. In fact, the Court’s “punting” of the decision, as some have termed it, has added an additional burden on UT Austin that will require heightened “strict scrutiny,” in its holistic admissions process wherein considerations of race might factor. While UT Austin dodged a bullet, in this case, the body of its admissions processes to achieve student diversity suffered a visibly chilling flesh wound. Now, all federally funded and supported institutions of higher learning have been put on alert that race-conscious factors in admissions to achieve a diverse student body will be under a microscope and subject to many more challenges, arguably.
As a key engine driving the economic prosperity of a state, the state colleges and universities have a vested interest in the post-Fisher diversity outcomes of its schools to power 21st Century businesses in local economies, in national competitiveness, and in global viability. And, even though the UC was not affected directly by Fisher, the sway of national public opinion would exert pressures on the California citizenry and its electoral politics (especially its influential proposition balloting), where higher education is concerned. This is especially the case given the rising tuition rates and declining state budget supports. So, post-Fisher, the message seems to be that sure we can exhale, but only until a stronger academic candidate than Fisher surfaces. This punting the Fisher case back down to the lower court (as it is being described) suggests that eventually a case will arise that can provide the Roberts Court sufficient cover for dismantling race-conscious admissions policies consistent with what is known to be the chief justice’s longstanding antipathy to Affirmative Action. And given some of the other decisions by the Court in the last week of June (particularly its gutting of the Voting Rights Act), we almost see the handwriting on the wall: “Affirmative Action ruled unconstitutional.”