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When the Cochiti Pueblo of New Mexico objected to the development of hydropower at the Cochiti Dam, Hobbs Straus helped the Tribe secure legislation blocking its development (1990).

General Memorandum 13-055

General Memorandum 13-055
Supreme Court Sends Affirmative Action Case Back for More Review

In a 7-1 ruling, the United States Supreme Court ruled on June 24, 2013, that a case on the constitutionality of considering race in university admissions must be re-examined by the Fifth Circuit Court of Appeals. The Fisher v. University of Texas at Austin case centered on Abigail Fisher, a white student, whose application to the University was rejected in 2008.

The University uses a series of factors, including race, in its admissions process for students who fail to otherwise meet the University's automatic acceptance standard. Please see our General Memorandum 12-029 (February 24, 2012) for further background on the case.

Justice Anthony Kennedy's majority opinion warned public colleges and universities that while diversity is an acceptable goal in the admissions process, schools can only consider race under very narrow circumstances. Kennedy stated "the reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity."

The decision means the University must demonstrate in the lower court that its admissions practices satisfy the "strict scrutiny" test. Strict scrutiny requires that a state's policies be narrowly tailored to serve a compelling governmental interest. Thus, Kennedy wrote, "Once the university has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation. The university must prove that the means chosen by the university to attain diversity are narrowly tailored to that goal."

If the University cannot show the lower court that its policy meets this standard, then it may not consider race during the admissions process. Kennedy wrote that it was the duty of the lower court to verify that the University's policy was necessary to achieve the benefits of diversity and that there is no race-neutral alternative that would provide the same benefits.

The Supreme Court's decision means that final resolution of this case could be months or years away.

However, the Supreme Court this week announced that it will hear another affirmative action case next term regarding the constitutionality of Michigan's 2006 Proposal 2 which banned the consideration of race in admissions practices. Prop 2 was a response to the United States Supreme Court's 2003 decision in Grutter v. Bollinger in which the Court held that Michigan's consideration of race in the admissions process did not violate the Fourteenth Amendment's guarantee of equal protection and met strict scrutiny. Please see our General Memorandum 03-89 (June 27, 2003) for more information on that case.

Please let us know if we may provide further information regarding these cases.

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Inquires may be directed to:
Chris Stearns (cstearns@hobbsstraus.com)

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