The Importance of the SCOTUS Affirmative Action Decision and Its Implications for Gay Rights


200px-Large_university-of-texas_seal_rgb(199-91-18)Already, Politico and Slate are calling today's Supreme Court decision today on the University of Texas's race-based affirmative action plan a "compromise" or a "punt." Not so. Sure, the Court did not issue an explicit holding on the constitutionality of university admission programs that take race into account; but the Court did make clear that any race-based classification must meet strict scrutiny, with little deference to the university. In short, even though the justices in the majority did not decide the fate of the U Texas program today, they just made it a lot harder for any university race-based affirmative action plan to survive.

And because the decision was 7-1 (with Justice Kagan recused), it also gaves us a hint to the Court's thinking as it approaches Prop 8 and DOMA: equality is not what it used to mean.

Fisher v. University of Texas challenges UT's admission decision process, which takes into account an applicant's race. The Court had held long ago, in a series of decisions starting in 1978, that race-based affirmative action plans demand strict scrutiny. The Court affirmed that idea in more recent decisions in 2003. But it waited until today to show just how serious it is.

Under the Court's precedents, strict scrutiny -- the toughest form of scrutiny that lets few laws pass constitutional muster -- must be applied to any admission program based on race. Universities only get deference to their considered judgment that "such diversity is essential to its educational mission," or, that racial diversity is good for teaching and good for the school environment. But, once a court accepts the university's rational and detailed explanation for the need for racial diversity, the university's deference disappears: it must show that the means to reach that diversity is "narrowly tailored" to achieve the goal.

That is strict scrutiny 101, but the Court's clear statement in this case is notable for two reasons. First, it shows how seriously the Court is taking the strict scrutiny requirements when it comes to race-based classifications. Second, in the Fisher context specifically, where affirmative action opponents have argued that socioeconomic diversity could achieve the same diversity goals without race-based classifications, the Court is making clear its strong disfavor for racial distinctions under the law.

It also tells us something about the gay rights decisions. The Court majority takes its scrutiny levels very seriously. Justice Ginsburg's dissenting opinion, in which she noted how little race is taken into account, fell on deaf ears. So, this was a case with a tiny racial classification, and a large majority on the Court used it as a chance to say it means business.


You would think that would mean that the Court would take classifications on the basis of sexual orientation just as seriously when it came to DOMA and Prop 8. Not so. First, race is different than sexual orientation. Race was listed in the original Supreme Court decision that first gave strict scrutiny to certain odious discriminations; sexual orientation was not.

SupremesBut more importantly, the Court is weaving a narrative about what "equality" means under its watch. The thousands of words just to send the Fisher case back to the Fifth Circuit made clear that the Court is not inclined to find that making up for past discrimination is a legitimate goal or a compelling path to passing strict scrutiny: It doesn't matter what schools used to do in the past; diversity can be achieved in many ways. This was the same objection the Court's conservatives brought up during their hostile questions about the Voting Rights Act a few months ago. If you recall, the issue in this other highly anticipated case is the fate of a provision of the Act that requires certain state apportionment plans to be approved by the DOJ because of those jurisdictions' histories discriminating against African Americans. Conservatives have little sympathy for this law partly because they see it as a gross violation of local and state rights in the name of punishing today's citizens for the sins of their fathers.

And yet a history of discrimination is a key factor in determining if any group — including the LGBT community — will get heightened scrutiny applied to instances of official discrimination. In Fisher, the Court is hinting that it is tossing aside the past and remaining blind to the very real lingering effects of decades of institutional discrimination. We should be concerned that this willful blindness will be one weapon the Court's conservatives use to deny us heightened scrutiny for anti-gay discrimination.


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Ari Ezra Waldman is the Associate Director of the Institute for
Information Law and Policy and a professor at New York Law School and is
concurrently getting his PhD at Columbia University in New York City.
He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard
Law School. Ari writes weekly posts on law and various LGBT issues.