Those who feared the end of affirmative action, can come out of the bunkers.
The coast is clear — for now — with the Supreme Court ruling 7-1 not to apply a death blow, but to send the Fisher v. University of Texas case back to the lower courts.
Just like you’d throw back a small one on a bad fishing trip.
I always thought Abigail Fisher’s case wasn’t quite good enough to bring down what has been the most successful tool for racial equity in history.
It was a classic White grievance case, whereby the White plaintiff pit minorities versus minorities, in this case Asian-Americans versus African-Americans and Latinos.
But the justices stuck to the law.
In fact, Justice Anthony Kennedy’s opinion is instructive for the plaintiff, and essentially a “How to beat affirmative action” using the standards of Grutter, the current affirmative action standard.
The opinion says the 5th circuit courts didn’t apply the “strict scrutiny” standards that require a court to “verify if it’s necessary” for a school to use race in admissions for diversity. Instead, the lower courts deferred to the university.
So the case was “vacated” and “remanded,” (legal terms for voided and sent back), and now it will be up to the plaintiffs if they really want to have another go at it.
Let’s hope not.
On the merits, Fisher couldn’t get a majority of hungry justices looking desperately to end affirmative action to see it her way: that as the aggrieved White student who didn’t qualify for the University of Texas’ Top Ten program, she was denied a spot in the freshman class because of her race.
Indeed, she was denied rightly because she didn’t qualify.
But Fisher proves as long as you are willing to be the poster girl for affirmative action critics, what the hell, take a shot at the SCOTUS lottery.
And that’s where Fisher gets a little life since SCOTUS’ fine tooth comb isn’t just on her claim. They looked at the entire case proceedings where they found a legal flaw that enabled a divided court to vote 7-1 on such an ideologically driven case.
When you get anti-affirmative action types to go 7-1 with pro-affirmative action types on a procedural matter that’s a victory for both sides.
At least for now. No end, but no continuation ad infinitum.
It just says the lower courts got it wrong, and the plaintiff and her legal team get to do it over again.
In the meantime, Texas’ Top Ten program remains intact, and affirmative action is still the law of the land.
Those rooting for diversity can breathe a little easier on summer break.
