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Supreme Court Makes Narrow Affirmative Action Ruling to Start Blockbuster Week

Arielle Atherley holds a sign in front of the U.S. Supreme Court before affirmative action arguments were heard on Oct. 10, 2012. Photo by Mark Wilson/Getty Images

The Morning Line

The Supreme Court decided on Monday its first of four major cases this term, pushing a dispute over University of Texas’ affirmative action policy back to the lower courts and handing ambiguous victories to both sides.

The case, argued in October, has been long-awaited by court watchers, and many said Monday the delay in a decision may have come from the justices trying to reach an agreement that wouldn’t split them ideologically. It was also a reminder that however big of a blockbuster a case is expected to be, the justices can always find a way to narrow its outcome.

In Monday’s decision, the court aligned seven justices in favor of petitioner Abigail Fisher, a 23-year-old white woman who did not win admission to the University of Texas at Austin despite its two-tiered admissions approach, which was to first accept students graduating in the top 10 percent of their classes and then to take into account race among other factors. Civil rights groups had feared the case could overturn a landmark 2003 decision that allowed state colleges and universities to use race in a holistic way for seeking diverse student populations.

The court didn’t go that far. Instead, it asked the U.S. Court of Appeals for the Fifth Circuit, which oversees Texas, to test the university’s policy in a more strenuous way.

Race should be used in admissions only if “no workable race-neutral alternatives would produce the educational benefits of diversity,” Justice Anthony Kennedy wrote in the majority opinion. The university would need to meet a legal test of “strict scrutiny” to continue its affirmative action practices, the court said.

For supporters of affirmative action, that ruling meant the court still endorsed the use of affirmative action in higher education under the Equal Protection Clause of the Constitution’s 14th Amendment.

“This is a win for the principles of opportunity, diversity, and equality. Abigail Fisher’s legal team failed to prove that she was discriminated against,” Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, said in a statement. University of Texas president Bill Powers called it a “positive outcome.”

The U.S. government applauded the decision too. Secretary of Education Arne Duncan said the case’s outcome “preserves the well-established legal principle that colleges and universities have a compelling interest in achieving the educational benefits that flow from a racially and ethnically diverse student body, and can lawfully pursue that interest in their admissions programs.”

However, Fisher, her backers and opponents of affirmative action said the decision helped them as well. It filled in questions that remained from the broad Grutter v. Bollinger ruling in 2003, which upheld affirmative action at the University of Michigan Law School, and it placed more legal limits on affirmative action practices, they said.

Edward Blum, the director of the Project On Fair Representation who brought this case to the court and funded Fisher, said, “This decision begins the restoration of the original colorblind principles to our nation’s civil rights laws. The Supreme Court has established exceptionally high hurdles for the University of Texas and other universities and colleges to overcome if they intend to continue using race preferences in their admissions policies. It is unlikely that most institutions will be able to overcome these hurdles.”

Fisher would prevail in the lower court, he added.

Justice Ruth Bader Ginsburg alone wrote a dissent, offering her approval of the University of Texas’ policy. Justice Elena Kagan recused herself from the case.

Columbia University President Lee Bollinger and Gail Heriot, a professor at the University of San Diego School of Law and a member of the U.S. Civil Rights Commission, joined Gwen Ifill on the NewsHour for a debate Monday.

Bollinger, who was named in and won the landmark 2003 case that set the precedent, said he was pleased the court reaffirmed its past decision Monday.

“There is a sense that universities will have to provide more evidence, perhaps more evidence, to support the programs. That shouldn’t be a problem. The underlying principle is secure and sound,” he said.

But Heriot pointed out the court wasn’t asked to address its past decisions.

“I agree that this is not an earth-shaking opinion. Ms. Fisher did win the case,” she said. “But essentially what the court did was clarify when it was willing to defer to academic expertise and when it wasn’t willing.”

Watch Gwen’s segment here or below.


The court tackled two other cases Monday that questioned whether employers or employees have more weight when dealing with discrimination in the workplace. In both cases, the court split 5-4 in favor of employers.

“What they did, basically, in those cases was to raise the bar on what employees have to do in order to prove discrimination under Title VII, which is our nation’s major job bias law. One of the decisions involved the definition of who is a supervisor,” said Marcia Coyle of the National Law Journal.

She analyzed those cases and the Fisher decision in a segment with Jeffrey Brown Monday. Watch their discussion here or below:


The coverage didn’t end there.

Online Politics Production Assistant Meena Ganesan manned our liveblog rounding up reaction to the affirmative action ruling from across the country, and Marcia Coyle’s first take on the decision moments after the court announced it.

The Atlantic’s Garrett Epps caught a moment of what he called “inexcusable rudeness” from Justice Samuel Alito when Ginsburg read her dissent. It was reminiscent of Alito mouthing “not true” during President Barack Obama’s State of the Union address, when the president criticized the court’s Citizen’s United decision.

The Fisher ruling isn’t the only case this term, or even Monday, to handle questions of civil rights and discrimination.

Tuesday and possibly later this week, the court plans to rule on its final six outstanding cases in the term, including the Proposition 8 case from California and the challenge to the federal Defense of Marriage Act. Both could be landmark rulings on gay rights.

A third major decision, on the Voting Rights Act of 1965, would look back to the civil rights era and history of discrimination in the South as it tests the Act’s Section 5, a clause that requires U.S. Department of Justice oversight on any changes in voting practices in select states and counties.

The NewsHour homepage will host SCOTUSblog’s live coverage Tuesday beginning at 10 a.m.

Don’t miss the updates to our Oral History Hotline page, which collects audio memories from when the Voting Rights Act passed. And for more in-depth Supreme Court coverage of the 2012-2013 term, visit our Supreme Court page.


The Senate bill to overhaul the country’s immigration system easily cleared a key hurdle Monday with 67 lawmakers voting in favor of a Republican plan to bolster the legislation’s border security elements. The final tally fell short of the 70 “yes” votes supporters of the proposal had hoped for, but still delivered a strong signal that final passage before the July Fourth recess was increasingly likely.

The amendment, drafted by GOP Sens. Bob Corker of Tennessee and John Hoeven of North Dakota, would nearly double the number of border agents to 40,000 and require the completion of 700 miles of border fencing. It would cost roughly $40 billion.

According to a Congressional Budget Office study released Monday, the Corker-Hoeven proposal “would reduce the net flow of unauthorized residents to the United States” compared with the Gang of Eight’s base bill.

In addition to Corker and Hoeven, 13 other Republicans voted for the measure. They included Lamar Alexander of Tennessee, Kelly Ayotte of New Hampshire, Jeff Chiesa of New Jersey, Susan Collins of Maine, Jeff Flake of Arizona, Lindsey Graham of South Carolina, Orrin Hatch of Utah, Dean Heller of Nevada, Mark Kirk of Illinois, John McCain of Arizona, Lisa Murkowski of Alaska, Marco Rubio of Florida and Roger Wicker of Mississippi.

Flake, Graham, McCain and Rubio are members of the bipartisan group of eight senators that crafted the immigration overhaul.

And the bill could draw additional GOP support, depending on how the amendment process plays out in coming days.

Sen. Rob Portman, R-Ohio, voted against shutting off debate Monday, but the Columbus Dispatch reports the Ohio Republican could support the final bill if it includes his provision to strengthen the E-Verify system that employers use to determine if they are hiring legal workers.

The New York Times’ Ashley Parker notes that Portman’s amendment could be part of a broader agreement on a package of amendments:

“As the procedural vote wound to a close Monday, the two sides were still working on a deal that would allow both Democrats and Republicans to bring up 10 more amendments each to the final bill — an agreement that would likely allow Senator Rob Portman, Republican of Ohio, to introduce a provision to further strengthen the electronic employment verification system in the bill.”

The Washington Post updated its whip count following Monday’s vote to reflect 51 “yes” or “likely yes” votes, and seven “undetermined.”

Even if supporters are able to peel off a couple more GOP votes for the final bill, it remains to be seen whether hitting the magic number of 70 will actually be enough to force Republicans in the House to take up the legislation.

Ahead of the vote the American Conservative Union endorsed the Corker-Hoeven border security compromise and urged “all conservative senators” to back the amendment.

And a group of evangelicals working for passage of the legislation has paid for a truck to drive a billboard around Capitol Hill. It hit the streets Monday:



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NEWSHOUR: #notjustaTVshow

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Christina Bellantoni and Simone Pathe contributed to this report.

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