In a surprising result, by a 4-3 vote, with Justice Kennedy writing, the Supreme Court upheld the University of Texas’ Affirmative Action plan. Ginsberg, Breyer and Sotomayor joined. Alito, Thomas and Roberts dissented. Kagan was recused, presumably for her role in the case while serving as Solicitor General.
In Fisher v. University of Texas at Austin, the Court held that the race-conscious admissions process in use at UT at the time of Fisher’s application was Constitutional. Some selections from the majority opinion:
The record itself contains significant evidence, both statistical and anecdotal, in support of the University’s position. To start, the demographic data the University has submitted show consistent stagnation in terms of the percentage of minority students enrolling at the University from 1996 to 2002.
In addition to this broad demographic data, the University put forward evidence that minority students admitted under the Hopwood regime experienced feelings of loneli Cite as: 579 U. S. ____ (2016) 15 Opinion of the Court ness and isolation. See, e.g., App. 317a–318a. This anecdotal evidence is, in turn, bolstered by further, more nuanced quantitative data. In 2002, 52 percent of undergraduate classes with at least five students had no African-American students enrolled in them, and 27 percent had only one African-American student. Supp. App. 140a. In other words, only 21 percent of undergraduate classes with five or more students in them had more than one African-American student enrolled. Twelve percent of these classes had no Hispanic students, as compared to 10 percent in 1996. Id., at 74a, 140a. Though a college must continually reassess its need for race-conscious review, here that assessment appears to have been done with care, and a reasonable determination was made that the University had not yet attained its goals.
In any event, it is not a failure of narrow tailoring for the impact of racial consideration to be minor. The fact that race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring, not evidence of unconstitutionality.
In short, none of petitioner’s suggested alternatives— nor other proposals considered or discussed in the course of this litigation—have been shown to be “available” and “workable” means through which the University could have met its educational goals, as it understood and de Cite as: 579 U. S. ____ (2016) 19 Opinion of the Court fined them in 2008. Fisher I, supra, at ___ (slip op., at 11). The University has thus met its burden of showing that the admissions policy it used at the time it rejected petitioner’s application was narrowly tailored.
And the Court finished with this admonition.
The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.
Justice Alito has written a blistering and bitter 50-page dissent, joined by Roberts and Thomas.
Something strange has happened since our prior decision in this case. See Fisher v. University of Tex. at Austin, 570 U. S. ___ (2013) (Fisher I). In that decision, we held that strict scrutiny requires the University of Texas at Austin (UT or University) to show that its use of race and ethnicity in making admissions decisions serves compelling interests and that its plan is narrowly tailored to achieve those ends. Rejecting the argument that we should defer to UT’s judgment on those matters, we made it clear that UT was obligated (1) to identify the interests justifying its plan with enough specificity to permit a reviewing court to determine whether the requirements of strict scrutiny were met, and (2) to show that those requirements were in fact satisfied. On remand, UT failed to do what our prior decision demanded. The University has still not identified with any degree of specificity the interests that its use of race and ethnicity is supposed to serve. Its primary argument is that merely invoking “the educational benefits of diversity” is sufficient and that it need not identify any metric that would allow a court to determine whether its plan is needed to serve, or is actually serving, those interests. This is nothing less than the plea for deference that we emphatically rejected in our prior decision. Today, however, the Court inexplicably grants that request.
It is important to understand what is and what is not at stake in this case. What is not at stake is whether UT or any other university may adopt an admissions plan that results in a student body with a broad representation of students from all racial and ethnic groups. UT previously had a race-neutral plan that it claimed had “effectively compensated for the loss of affirmative action,” App. 396a, and UT could have taken other steps that would have increased the diversity of its admitted students without taking race or ethnic background into account. What is at stake is whether university administrators may justify systematic racial discrimination simply by asserting that such discrimination is necessary to achieve “the educational benefits of diversity,” without explaining—much less proving—why the discrimination is needed or how the discriminatory plan is well crafted to serve its objectives. Even though UT has never provided any coherent explanation for its asserted need to discriminate on the basis of race, and even though UT’s position relies on a series of unsupported and noxious racial assumptions, the majority concludes that UT has met its heavy burden. This conclusion is remarkable—and remarkably wrong. Because UT has failed to satisfy strict scrutiny, I respectfully dissent.