Affirmative Action Appears Headed Back to SCOTUS

The national debate over affirmative action appears to be headed
back to the U.S. Supreme Court. Yesterday the U.S. Court of Appeals
for the 5th Circuit declined to rehear the case of Fisher v.
University of Texas at Austin with a full panel of judges.
That refusal leaves the U.S. Supreme Court as the next and final
step in the appeals process. Don’t be surprised if the Court agrees
to take the case.

If
the name Fisher v. University of Texas at Austin sounds
familiar, that’s because the Supreme Court already issued one
ruling on it back in June 2013. At issue was whether that state
university had violated the Equal Protection Clause of the 14th
Amendment by taking race into account when making undergraduate
admissions decisions. In a surprising decision, however, the Court
avoided the constitutional debate over affirmative action by
ordering the 5th Circuit to rehear the case and reconsider the
contested university policy under the appropriate level of strict
judicial scrutiny.

Why did the Supreme Court call for a do-over? According to the
majority
opinion of Justice Anthony Kennedy, the 5th Circuit erred “by
deferring to the University’s good faith in its use of racial
classifications.” The second time around, Kennedy ordered, “the
admissions process [must] be considered and judged under a correct
analysis.” (Writing separately in Fisher, Justice Clarence
Thomas
stated that he would “hold that a State’s use of race in higher
education admissions decisions is categorically prohibited by the
Equal Protection Clause.”)

The 5th Circuit subsequently reheard the case yet still reached
the same outcome, voting once more in favor of the state university
and its race-conscious admissions policy. Did the 5th Circuit apply
strict scrutiny that time around? The court certainly said
that it did, but Justice Kennedy and his colleagues are unlikely to
take the tribunal at its word. All things considered,
Fisher stands a good chance of returning to the High
Court’s docket sometime in 2015.