Web Video: Supreme Court decides Fisher v. University of Texas...again

Jun. 17, 2016 AT 12:17 p.m. EDT

Three years ago, the Supreme Court sent an affirmative action case involving college admissions back to a lower court and said "strict scrutiny" should be applied when examining the University of Texas's race-based policy.

Well, the ambiguity of "strict scrutiny" led this week to round two in the case Abigail Fisher v. University of Texas, as the justices were deciding whether the Fifth Circuit Court of Appeals correctly applied the rule of strict scrutiny. On Thursday, the Supreme Court upheld the affirmative action program at the University of Texas. The vote was 4-3.

"What the Court is basically saying is, it's okay to have diversity, but universities have to almost prove they've tried everything except a race-conscious program to get that diversity," NBC's Pete Williams said of the Supreme Court's original ruling in 2013. "The court shouldn't take their word for it. They should give them an extra hard test."

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Notice: Transcripts are machine and human generated and lightly edited for accuracy. They may contain errors.

MS. IFILL: And the future of affirmative action is left unresolved.

ABIGAIL FISHER: (From tape.) We’ve got more work to do, but I’m looking forward to the next steps in this process.

MS. IFILL: We examine the legal, policy, and political implications of a historic week at the nation’s highest court....

MS. IFILL: Another big decision this week, affirmative action. Boy, they were just – they just kept them coming. In this case, Justice Kennedy was once again writing for a seven-to-one majority. There wasn’t a lot of dispute. But this is what he had to say about that.

He said: “Strict scrutiny” – and we’ll get back to what that means – “does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice.” What is he talking about?

MS. BISKUPIC: Well, the bottom line is that, for now, universities can continue to take into consideration the race of an applicant. We were wondering whether the court might use this case to say, no affirmative action nationwide. But the court stopped well short of that, but said in the Texas case, from the University of Texas, where the young woman who you just saw on the screen, Abigail Fisher, had been excluded, that they have to go back and have that program reassessed.

Important, Gwen, is he didn’t backtrack from the 1978 Bakke decision or the 2003 Grutter decision –

MS. IFILL: For now.

MS. BISKUPIC: For now, exactly. But there was almost like the same sort of warning shot that Pete was referring to in 2009 on voting rights, here in this case. And what it essentially said was that the lower court had used the proper standard, but used it too generously toward the university.

MR. WILLIAMS: What the court is basically saying is, it’s OK to have diversity, but universities have to almost prove that they’ve tried everything except a race-conscious program to get that diversity. And the court shouldn’t take their word for it. They should give them an extra hard test.

MS. IFILL: Well, like the Texas plan. There were a lot of things that they had in that lump, but as long as race was part of it, they could consider regional, geographic diversity. They could consider all kinds of things. But race always is the thing that makes people go, no. That’s a bridge too far.

MR. BALZ: And one of the things about this issue is, first of all, over the last 20 years, support for affirmative action has declined. There was an NBC-Wall Street Journal poll in May or early June that basically has it 45-45 of we think it needs to continue, we think it should end. On that question, there is a huge division between whites and African-Americans and Latinos.

MS. WALTER: And there’s a huge division on – we were looking at the same poll – there’s a huge division on Democrat and Republican. And this is really the challenge when we’re thinking about how these issues play out politically is we know, coming from the 2012 campaign, the Republican Party says, we’ve got a demographic problem on our hands, right? We have to get more young voters to vote for us. We have to get minorities to vote for us.

On gay marriage, they know they’re on the wrong side in terms of where that demographic trend is going. And yet, their base is still very much against gay marriage. I mean, the support of it – I think it was 29 percent among Republicans, whereas among Democrats and independents, it’s over 50 percent. The same thing on this issue.

MR. BALZ: The other tricky thing about this issue, if you introduce the idea of any kind of a preference, support goes way down for affirmative action. I mean, we did a poll. It was 76 against, 22 in favor.

MS. BISKUPIC: With the question being asked, preference rather than diversity.

MR. BALZ: Tailored to that – tailored to this decision.


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