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(NOTE TO READERS: This post deals with a follow-up development in an affirmative action case from the Supreme Court’s last Term, not the new case scheduled for next Term that is the subject of the symposium currently being published on the blog.) ————- The Fifth Circuit Court, beginning a process
The Court’s decision today in Fisher v. University of Texas at Austin shows the folly of predicting outcomes with any degree of confidence. It brings to mind a story about when Thurgood Marshall was hospitalized with pneumonia in 1970.
Olatunde Johnson is a professor of law at Columbia University Law School. In its ruling today in Fisher v. University of Texas at Austin, the Court preserved Grutter‘s core holding that “obtaining the educational benefits of ‘student body diversity is a compelling state interest that can justify the use of race in university admissions.'” One might have predicted that Justice Kennedy would write the majority opinion.
Vikram Amar is Associate Dean for Academic Affairs and Professor of Law at UC Davis. On the one hand, my ego is heartened to know that last fall, in writing for this site, I explicitly observed that the Court might do just what it decided to do today — simply remand to the U.S. Court of Appeals for the Fifth Circuit for a sharper look at the University of Texas’s race-based policy and its justification.
Justice Kennedy’s opinion in Fisher v. University of Texas at Austin demonstrates as well as anything else could that the Supreme Court should never have granted certiorari in this case.
The same day the United States Supreme Court issued its opinion in Fisher v. University of Texas, the trial of George Zimmerman for the shooting of Trayvon Martin began in Florida.
Richard Sander is Professor of Law at UCLA and the co-author of Mismatch. In 2003, the last time the Supreme Court took up the issue of racial preferences in higher education (the case of Grutter v. Bollinger), Justice Kennedy was in dissent.
Clearly we have touched a nerve. Among the more than seventy amicus briefs filed on behalf of UT-Austin in Fisher, the argument made by the Constitutional Accountability Center’s brief (signed by both of us, along with preeminent constitutional scholars including Jack Balkin, Bruce Ackerman, and Burt Neuborne) has sparked considerable commentary among conservative proponents of originalism.
My point was not that there is no difference between race-conscious affirmative action and any conceivable substitute – it is that there is likely to be little difference between race-conscious affirmative action and the race-neutral alternatives most universities will adopt if prohibited from considering race.
Steve Sanders is a visiting assistant professor at the University of Michigan Law School and a former administrative staff member at Indiana University Bloomington. The views expressed here are his own.
The following contribution to our Fisher symposium comes from Inimai Chettiar, the Director of the Justice Program at the Brennan Center for Justice at New York University School of Law. The Brennan Center filed an amicus brief in Fisher v. University of Texas along with the League of Women Voters.
In last week’s Fisher v. University of Texas symposium, the Supreme Court’s longstanding Fourteenth Amendment jurisprudence requiring that universities explore “race-neutral alternatives” before resorting to racial preferences came under attack from commentators across the political spectrum.