The Austin Chronicle

US Supremes Speak on UT, No Word on Voting Rights

By Richard Whittaker, June 24, 2013, 2:00pm, Newsdesk

As the abortion rights debate in the Texas legislature grabs headlines, the Supreme Court of the United States has not been idle. This morning, the justices sent a case attacking UT's diversity admissions efforts back to the lower court. However, there is still no word on the Voting Rights Act or the Defense of Marriage Act.

Texans have been eagerly awaiting (or awaiting with trepidation, depending on your stakes in the game) four SCOTUS rulings. First, Fisher v. UT, challenging the use of the racial diversity in the admissions policy for the state's flagship university. Secondly, Shelby County v. Holder, which is an effort out of Alabama to overturn the preclearance components of Section 5 of the VRA. And thirdly, a pair of cases on gay marriage: United States v. Windsor, which challenges the definition of a married couple in DOMA, and Hollingsworth v. Perry, which seeks to overturn California's repressive Prop. 8 ban on same-sex marriage.

SCOTUS moves at its own pace, and gives no clues as to when specific rulings are given. So today, like supplicants, the parties and affected communities gathered to see what popped out of the shoot. Amongst a plethora of smaller rulings, the only big egg was Fisher, and it's hardly the definitive ruling either side would be hoping for. Instead, SCOTUS sent the case back down to the Fifth Circuit for further review. The ruling was 7-1 (read the full ruling here: Justice Ruth Bader Ginsburg wrote a dissenting opinion, while Justice Elena Kagan recused herself.)

In a statement, UT President Bill Powers wrote that he was "encouraged by the Supreme Court’s ruling in this case. … We remain committed to assembling a student body at The University of Texas at Austin that provides the educational benefits of diversity on campus while respecting the rights of all students and acting within the constitutional framework established by the Court."

Here's the issue. In 2004, UT revised its admissions program after the 5-4 SCOTUS ruling in Grutter v. Bollinger that the University of Michigan Law School was justified in seeking diversity through its admissions program. In 2008 two failed UT applicants, Abigail Fisher and Rachel Michalewicz filed a suit after they claimed that they were discriminated against after their applications failed. Neither was eligible under the Top 10% rule and so went through the standard application process. That system takes a whole series of factors – including scores, extracurricular activites, and race – into account, and the pair argued that the system violated the Equal Protection clause and Title VI of the Civil Rights Act of 1964. They initially argued that, because minority students were given a modicum of priority, as white applicants they were clearly the victims of affirmative action. Since then, Fisher has graduated from LSU, and Michalewicz has withdrawn from the suit.

In 2009, the pair lost their initial hearing before the Western District of Texas of the United States District Court, and then appealed to the US Fifth Circuit. In 2011, they were again rebuffed, and so appealed to SCOTUS.

In today's ruling, the majority (Chief Justice John Roberts, plus Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas, Stephen Breyer, Samuel Alito, and Sonia Sotomayor) sent a "must try harder" letter to the lower court. In the majority opinion issued this morning, Kennedy wrote, "Because the Fifth Circuit did not hold the University to the demanding burden of strict scrutiny articulated in [Grutter], its decision affirming the District Court’s grant of summary judgment to the University was incorrect."

In plainer English: The justices did not throw out the concept of affirmative action. However, they did rule that the lower court needs to make sure it was rigorous enough.

In his statement, Powers said he was satisfied that UT's admissions process would stand up to this additional scrutiny. He wrote, "Today's ruling will have no impact on admissions decisions we have already made or any immediate impact on our holistic admissions policies."

The SCOTUS decision does not rule out further appeals to whatever the Fifth Circuit rules in future. Over at, attorney Tejinder Singh with Goldstein & Russell wrote, "It's clear that the Court has sent a bit of a message to the lower court. If the court below reaches the same result again, then it's entirely possible that the case will be back before the Justices. "

That could work out to the advantage of the more conservative justices. Thomas concurred with the majority, but wrote his own opinion in which he said he would happily throw out Grutter, "and hold that a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause."

Similarly Scalia, who was part of the anti-diversity minority in Grutter, wrote in his own concurring opinion, "The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception." However, since Fisher had not asked the court to overturn Grutter, there was little he could do except join with the majority.

Ginsburg was unimpressed by her colleagues' decision. In her dissenting opinion, she argued that the appeals court ruling should have been upheld. She wrote, "Government actors, including state universities, need not be blind to the lingering effects of 'an overtly discriminatory past.'"

So what now for DOMA, Prop. 8 and Section 5? The court's current term ends at the end of the month, and Roberts has set another day of business for tomorrow, June 25.

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