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What the Supreme Court did (and didn’t) do on affirmative action

The Supreme Court punted today in the affirmative action case, Fisher v. University of Texas at Austin, sending the case back to the Fifth Circuit — and possibly even the district court — for a reconsideration of the university’s affirmative action policy under a strict scrutiny standard.

In the 7-1 decision by Justice Anthony Kennedy, the Court said that “because the Fifth Circuit did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and Regents of Univ. of Cal. v. Bakke, its decision affirming the District Court’s grant of summary judgment to the University was incorrect.”

“[S]trict scrutiny does require a court to examine with care, and not defer to, a university’s ‘serious, good faith consideration of workable race-neutral alternatives,’” Kennedy added.

Earlier in the term, the Court had already signaled that it would be revisiting its landmark 2003 decision validating affirmative action in Grutter v. Bollinger by agreeing to hear a new challenge, Schuette v. Coalition Against Affirmative Action, next term.

That means that the Court may render a decision on the merits of affirmative action policies next term even before the Fisher case makes its way again through the lower courts.

The composition of the Court has changed since Grutter, with Justice Sandra Day O’Connor, who wrote that opinion, retiring and the more conservative Justice Samuel Alito taking her place.

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