Prof. Taylor on the Supreme Court's Fisher ruling
The U.S. Supreme Court handed down its opinion in the Fisher v. University of Texas at Austin case this morning, which dealt with the issue of affirmative action programs in higher education admissions. The justices ruled that the lower court did not hold the University of Texas' program to strict enough scrutiny, and sent the case back for further review.
Prof. Aaron Taylor, one of SLU LAW's education law experts, tweeted about the decision after it was announced.
The SCOTUS opinion in Fisher seems to align with what I predicted a year ago here: http://t.co/bY4b9Myo4T
— AARON N TAYLOR (@TheEdLawProf) June 24, 2013
The blog post explains the issues of the case in plain English, for those who are unfamiliar with the background. Prof. Taylor adds, though, that he was writing about public higher education, but this case will affect private institutions as well. He continued:
Whether diversity was a "compelling interest" was never at issue. It was whether the specific policy at Texas was "narrowly tailored."
— AARON N TAYLOR (@TheEdLawProf) June 24, 2013
Policies that use race as a factor in apportioning public benefits must be "narrowly tailored" to serve a "compelling government interest".
— AARON N TAYLOR (@TheEdLawProf) June 24, 2013
Policies that use race as a factor in apportioning public benefits must be "narrowly tailored" to serve a "compelling government interest".
— AARON N TAYLOR (@TheEdLawProf) June 24, 2013
To be "narrowly tailored," the policy must be no more discriminatory than necessary to achieve that compelling interest.
— AARON N TAYLOR (@TheEdLawProf) June 24, 2013
Diversity deemed a compelling interest in Bakke--1st major #highered affirmative action case. Colleges can seek "robust exchange of ideas."
— AARON N TAYLOR (@TheEdLawProf) June 24, 2013
In Grutter (which affirmed Bakke), Justice Kennedy agreed diversity was compelling interest, but had issue with narrowly tailoring of policy
— AARON N TAYLOR (@TheEdLawProf) June 24, 2013
In Fisher, Kennedy says that on issue of narrow tailoring, schools are to receive "no deference." Major departure from previous precedent.
— AARON N TAYLOR (@TheEdLawProf) June 24, 2013
This decision seems to open the door for circuit splits and the permissible contours of race in admissions being based on judicial circuit.
— AARON N TAYLOR (@TheEdLawProf) June 24, 2013
What effect will the "success" of the Texas Top 10% plan in fostering diversity have on the 5th Circuit's review?
— AARON N TAYLOR (@TheEdLawProf) June 24, 2013
This might be the quote that defines legacy of Fisher case: "Strict scrutiny must not be strict in theory but feeble in fact."
— AARON N TAYLOR (@TheEdLawProf) June 24, 2013
Prof. Taylor said after reading the opinion that he's not optimistic about the UT program's chances during it's new review. "The chances of this policy being upheld are not favorable," he said. "Texas will have to actually demonstrate that it has exhausted every 'workable race-neutral alternative' alternative in achieving the compelling interest of diversity. This is a significant departure from previous precedent, which deferred to the expertise of universities in the realm of admissions. In other words, Texas will have to answer to the court in a way that universities never have before."
Channel 5 (KSDK) had Prof. Taylor on air Monday afternoon to discuss the case.
