Skip to main content area Skip to main content area Skip to institutional navigation Skip to search Skip to section navigation

Prof. Theodore Ruger: SCOTUS affirmative action decision hands higher-education a “homework assignment”

June 25, 2013

Editor’s Note: Theodore Ruger, Professor of Law, is a constitutional expert who filed an amicus brief in Fisher v. University of Texas. This post is part of a series by Penn Law faculty on the major decisions being issued this week by the U.S. Supreme Court.


Sometimes the second-best option may end up the best solution after all.

Certainly neither party to the Fisher v. University of Texas affirmative action case decided yesterday would have preferred the narrow ruling the Supreme Court issued, effectively punting the issue back to the lower federal courts for further fact-finding. Nor was the ruling the outcome favored by the numerous amici organizations on both sides of the case who argued for a more robust judicial affirmation – or repudiation – of the use of race in university admissions.

From the extraordinary length of time that passed between last October’s oral argument and the ultimate decision in Fisher, we can surmise that many of the Justices themselves likewise preferred a more definitive resolution of the dispute, only coalescing on yesterday’s remand as a late compromise as the Term’s end loomed.

Yet by shifting the case back to the lower courts, the Supreme Court has encouraged the constitutional debate on affirmative action to continue among a broader set of institutions around the country.

In the short term, litigation in the Fifth Circuit will focus on the specifics of the University of Texas policy, but in other parts of the country other individuals, universities, state legislatures, and federal courts will approach the debate differently, probably achieving diverse end results over the next decade.

Such multimodal constitutionalism frustrates values of national uniformity, but is in the best tradition of our federalism and constitutional pluralism, currently also displayed on developing issues like same-sex marriage and physician assisted suicide, where the institutions and individuals driving major constitutional change are situated outside of Washington, D.C.    

This is not to say the Supreme Court was entirely passive in its ruling on Fisher.    On one hand, it reaffirmed a core principle of both Bakke and Grutter that the consideration of race in university admissions is not categorically unconstitutional so long as institutions use race in appropriate fashion.   On the other, the Court emphasized the searching scrutiny that reviewing courts are to give to challenged admissions policies, effectively ratcheting up the burden of justifications on institutions who use race in admissions.

The ruling will operate as a judicial homework assignment to the nation’s higher education leaders. To support using race in admissions, colleges and universities will need to accumulate more evidence, and offer more complete justifications, of current admissions policies.