Fisher Revisits "Strict Scrutiny" As Applied to Affirmative Action in College Admissions Programs

July 02, 2013

In an Opinion authored by Justice Anthony Kennedy for a 7-1 majority, the United States Supreme Court in Fisher v. University of Texas at Austin, et al., allowed public colleges and universities to retain their affirmative action programs, at least for the time being. But the Court also issued a stern reminder that to survive a legal challenge these programs must meet the Fourteenth Amendment “strict scrutiny” standard of review, which is applied to government actions or decisions that take race into account. After revisiting the meaning of that standard as applied to university admissions programs where race is used as a factor, the Court reversed and vacated the Fifth Circuit Court of Appeals’ decision to uphold the University of Texas’ admissions policy, which the University had adopted after the Supreme Court’s decision in Grutter v. Bollinger. With only Justice Ruth Bader Ginsburg dissenting, the Supreme Court held that the lower courts had failed to apply “strict scrutiny” correctly. However, rather than strike down the University’s program, the Supreme Court remanded the case to the lower courts “so that [the University’s] admissions process can be considered and judged under a correct analysis.” This OnPoint reviews the Court’s opinion.

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