Stepping back from the brink of possibly overturning affirmative action programs, the Supreme Court on Monday sent back to lower courts the University of Texas program that was under challenge in Fisher v. University of Texas at Austin.
The case returns to the the U.S. Court of Appeals for the Fifth Circuit with instructions from the Supreme Court majority to apply "strict scrutiny" to the question whether the University of Texas "has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity."
Justice Anthony Kennedy, writing for the 7-1 majority, said the Fifth Circuit had given too much deference to the university on the issue. Justice Elena Kagan recused, likely because of her involvement in the case at earlier stages as solicitor general. The Supreme Court opinion is here.
The unusually brief 13-page opinion took eight months for the court to craft, suggesting extensive revisions to find narrow grounds that would command a majority. It appears to leave in place the 2003 Grutter v. Bollinger decision that allowed the use of race among other factors in university admission programs. Abigail Fisher, the white applicant challenging the University of Texas plan, did not directly ask the court to overturn Grutter.
The only dissent came from Justice Ruth Bader Ginsburg, who said she would not have returned the case"for a second look." She added that the court's majority "rightly declines to cast off the equal protection framework settled in Grutter."
The Fisher decision was one of five rulings issued Monday, with more to come Tuesday and probably one other day this week.
The remaining cases include a Voting Rights Act dispute and two cases on same-sex marriage. Check back here and at NLJ.com later for more on the Fisher ruling and other Supreme Court action.