• October 2, 2014

Fisher v. Texas: Where the Justices Stood

By Sara Hebel and Sara Lipka

The U.S. Supreme Court released its decision on Monday in Fisher v. University of Texas at Austin, No. 11-345, a case that centers on whether and how race may be used in college admissions.

The court ruled, 7 to 1, that the U.S. Court of Appeals for the Fifth Circuit had incorrectly upheld a lower court’s decision in favor of the university’s race-conscious admissions policy, and sent the case back to the Fifth Circuit for reconsideration.

Justice Anthony M. Kennedy wrote the majority opinion, with Justices Antonin Scalia and Clarence Thomas filing concurring opinions. Justice Ruth Bader Ginsburg wrote in dissent, and Justice Elena Kagan recused herself from the case. | More on the decision

The Opinions


  • Anthony M. Kennedy

  • John G. Roberts Jr.

  • Antonin Scalia

  • Clarence Thomas

  • Stephen G. Breyer

  • Samuel A. Alito Jr.

  • Sonia M. Sotomayor

Justice Kennedy and the Majority Opinion

In writing the court’s majority opinion—that the Fifth Circuit was too deferential to the university, not subjecting its race-conscious admissions policy to sufficiently “strict scrutiny”—Justice Anthony M. Kennedy was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, Stephen G. Breyer, Samuel A. Alito Jr., and Sonia M. Sotomayor.

The lower courts that considered the case essentially accepted the university’s position that it considers race in good faith, according to legally permissible standards, but, Justice Kennedy argued, without carefully examining how its race-conscious policy was carried out. The ruling remands the case to the Fifth Circuit “so that the admissions process can be considered and judged under a correct analysis,” he wrote.

Colleges are due a certain degree of deference, the majority held, in defining the goal and benefits of a diverse student body. But even that “academic judgment” is subject to review, Justice Kennedy said. “A court, of course, should ensure that there is a reasoned, principled explanation for the academic decision.”

Beyond the goal of diversity, any admissions policy seeking to achieve it must maintain flexibility—meaning that applicants should be evaluated individually, without race as their defining characteristic—and cannot be a quota system, the court ruled. “Race may not be considered,” Justice Kennedy said, “unless the admissions process can withstand strict scrutiny.”

Whether a given policy is legitimate “is for the courts, not for university administrators,” to determine, the majority held. To pass legal muster, a college must demonstrate and the judiciary must find both that the policy is narrowly tailored to meet the goal of enrolling a diverse student body and that a race-conscious policy is necessary to achieve such diversity.

That second step, Justice Kennedy wrote, “involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.”

Meanwhile, the majority opinion also left intact precedents affirming the value of diversity on a college campus. “The attainment of a diverse student body,” Justice Kennedy wrote in reviewing those precedents, “serves values beyond race alone, including enhanced classroom dialogue and the lessening of racial isolation and stereotypes.”


  • Antonin Scalia

Justice Scalia: Concurring

Justice Antonin Scalia said that he continues to adhere to the view that the U.S. Constitution forbids government discrimination based on race and that state-provided education is no exception. In his one-paragraph concurring opinion he added that the plaintiff in Fisher v. Texas, however, did not ask the court to overrule its holding in a previous affirmative-action case, Grutter v. Bollinger. In that decision, in 2003, the court said that a compelling government interest in the educational benefits of diversity can justify racial preferences, if they are narrowly tailored, in university admissions.


  • Clarence Thomas

Justice Thomas: Concurring

Justice Clarence Thomas said he would hold that a state’s use of race in college-admissions decisions is “categorically prohibited” by the equal-protection clause of the U.S. Constitution and thereby would overrule the court’s 2003 decision in Grutter v. Bollinger.

In his 20-page concurring opinion, Justice Thomas wrote that there is no “pressing public necessity” for “obtaining whatever educational benefits may flow from racial diversity” and that such benefits, if they exist, “hardly qualify as a compelling state interest.”

Aside from its ruling in the Grutter case, Justice Thomas wrote, the court has recognized only two instances in which a pressing public necessity may justify racial discrimination by the government. Those instances are protecting national security and remedying past discrimination for which the government was responsible.

Justice Thomas said that the argument that educational benefits justify racial discrimination was also advanced in support of racial segregation in the 1950s. “In our desegregation cases,” Justice Thomas wrote, “we rejected arguments that are virtually identical to those advanced by the university today.”

For example, he said, the university argues that the diversity obtained through its admissions policy prepares its students to become leaders in a diverse society. Segregationists, Justice Thomas said, likewise defended segregation on the grounds that it provided more leadership opportunities for black people.

The university’s policy does harm, Justice Thomas said, not only to white and Asian-American applicants who are rejected because of their race but also to minority applicants who are admitted and who may be academically underprepared to attend the flagship campus.

“Although cloaked in good intentions,” he wrote, “the university’s racial tinkering harms the very people it claims to be helping.”

“The worst forms of racial discrimination in this nation,” Justice Thomas said, “have always been accompanied by straight-faced representations that discrimination helped minorities.”


  • Ruth Bader Ginsburg

Justice Ginsburg: Dissenting

Justice Ruth Bader Ginsburg was the lone dissenter in the case. She affirmed the Fifth Circuit’s decision to uphold the university’s race-conscious admissions policy, arguing that the lower court’s assessment of the policy was sufficient and that the policy is just and constitutional.

“The university has steered clear of a quota system,” Justice Ginsburg wrote. “And, like so many educational institutions across the nation,” she said, it has “taken care to follow the model approved by the court in Grutter v. Bollinger.”

The Austin campus’s admissions policy “flexibly considers race only as a ‘factor of a factor of a factor of a factor,’” Justice Ginsburg wrote, citing the lower court’s opinion. The policy also derives from the “reasonable, good-faith judgment that supposedly race-neutral initiatives were insufficient to achieve, in appropriate measure, the educational benefits of student-body diversity,” she wrote. And the policy is subject to judicial review “to ensure that the consideration of race remains necessary and proper to achieve the university’s educational objectives.”

Justice Ginsburg also argued that the “vaunted alternatives” to race-conscious admissions—such as “race-blind holistic review” and the Texas law requiring the university to admit students across the state who are in the top 10th of their high-school classes—are camouflage. “Texas’ percentage plan was adopted with racially segregated neighborhoods and schools front and center stage,” she said, citing the House Research Organization’s analysis of the bill.

“Only an ostrich,” Justice Ginsburg wrote, “could regard the supposedly neutral alternatives as race unconscious.”


  • Elena Kagan

Justice Kagan: Recused

Justice Kagan has recused herself from the case. She was involved, in her previous position as U.S. solicitor general, in the Obama administration's submission of a brief supporting Texas when the case was before a lower court.

Clarification (6/28/2013, 6:19 a.m.): This summary of the opinions originally misstated what the majority opinion said about the value of diversity on college campuses. The opinion left intact precedents affirming that value; it did not affirm those precedents itself. This summary has been updated to reflect the clarification.

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