The Supreme Court’s punt in Fisher saves Grutter and race-sensitive admissions policies

June 25, 2013

Security guards walk the steps of the Supreme Court before Justice Elena Kagan's investiture ceremony in WashingtonLast week, the Supreme Court announced its decision in Arizona v. The Inter Tribal Council of Arizona, Inc., the first on our list of the top five most anticipated Supreme Court cases post from the end of May.

Apparently, SCOTUS is announcing the rest of these major decisions in the order laid out in that post, because the next of our top five – Fisher v. University of Texas at Austin – was the next in the list announced.

Decided yesterday, Fisher involved a challenge to the admissions policies at University of Texas at Austin (UT), which utilized race as one of its many factors.

Many observers, including me, were regarding the decision as a challenge to the Supreme Court’s 2003 Grutter v. Bollinger decision.

The primary rationale supporting this viewpoint was that UT’s program being challenged in Fisher was nearly identical to the program upheld in GrutterThe Fisher district court found that “it would be difficult for UT to construct an admissions policy that more closely resembles the policy approved by the Supreme Court in Grutter,” and “as long as Grutter remains good law, UT’s current admissions program remains constitutional.”

Thus, in order for Fisher to succeed in her challenge, the Court would need to strike down Grutter

Many observers – a group that unfortunately includes me yet again – erroneously predicted that, because of the Court’s rightward shift since the time that Grutter was decided and because of Kagan’s recusal in Fisher, Fisher would overrule Grutter and the use of race in school admissions would be solely relegated to the pages of history.

As alluded to, though, this prediction turned out to be incorrect.  It turns out respect for precedent did save these school admissions policies.

Fisher was decided 7-1, with Justice Ginsburg providing the only dissent.

The majority vacated the appeals court’s decision, and remanded the case back to that court “so that the admissions process can be considered and judged under a correct analysis.”

This “correct analysis” is “strict scrutiny,” which, according to the majority, the appeals court failed to apply in its decision.

Instead of overturning Grutter, the majority took lines straight out of that decision in coming to its own in Fisher: Grutter “command[s] that ‘all racial classifications imposed by government ‘must be analyzed by a reviewing court under strict scrutiny.’’“

That doesn’t mean that there weren’t those in the majority who wanted Grutter overturned: both Justice Scalia and Justice Thomas concurred separately stating their beliefs that Grutter should be overturned.

Nor did all members of the Court believe that the Fifth Circuit failed to apply strict scrutiny: Justice Ginsburg maintained in her dissent that the court of appeals “has already completed [the strict scrutiny] inquiry.”

Despite the presence of Justices Scalia and Thomas in the majority and of Justice Ginsburg’s in the dissent, the Court’s decision in Fisher is a win for those hoping for Grutter’s survival.


Had the Court been forced to directly address the question of whether Grutter’s finding that a school’s educational goal of achieving “a diverse student body” constituted a “compelling interest” sufficient to pass strict scrutiny’s muster, it’s very likely that Grutter would not have safely walked away from such a Fisher decision.

Instead, the Fisher decision that we did get remands the case back to the court of appeals because, according to the majority, the lower court was not compliant enough with Grutter.

On remand, the Fifth Circuit, in all likelihood, will find that the UT’s admissions policies pass strict scrutiny, because doing otherwise would, well, be like overturning Grutter.

The real questions at this point, then, are whether the Court will agree to actually hear the case once again when Fisher appeals the decision, and, if so, whether the Court will allow Grutter to live to see another day.

It will take several years to get to the point that these questions can be answered.

However, this week’s decision does offer some guidance on those questions: the Court’s hesitance to strike down Grutter in Fisher makes it abundantly clear that, for most of the justices, personal ideology does not automatically supersede established judicial precedent.