The U.S. Supreme Court sent back to lower courts the University of Texas program that was under challenge in Fisher v. University of Texas at Austin. Constitutional scholars from Cornell University Law School respond to the decision.
Michael C. Dorf, professor of law: Former clerk to Supreme Court Justice Anthony Kennedy, Dorf has written more than 70 law review articles and essays on constitutional law and related subjects. His is co-author (with Laurence Tribe) of “On Reading the Constitution” published by Harvard University Press:
“Despite the Supreme Court's near-unanimity in the Fisher case, the justices remain deeply divided over the permissible scope of racial considerations in higher education admissions. To its credit, the Court once again affirmed the value of diversity, but it was able to achieve consensus chiefly by avoiding the hard questions, leaving them to the lower courts. Now the action will shift back to those lower courts – and to thousands of university admissions officers around the country.”
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Steve Shiffrin, professor of law: Author of “The First Amendment, Democracy and Romance,” published by Harvard University Press, Shiffrin is currently working on a new book, “What’s Wrong With the First Amendment?”
“The Court in Fisher determined that deference must be paid to a university’s assessment of its mission, but a university’s implementation of a race-conscious admissions program must be examined with searching or strict scrutiny. Because the lower court gave deference to the university’s judgments in implementing the race conscious program, the case was sent back for re-examination.
“Conspicuously, justices Scalia and Thomas, who oppose race conscious programs altogether, made no reference in their opinions to the original understanding of the Fourteenth Amendment. On many occasions they have proclaimed that the original understanding of the Constitution should control its interpretation. It turns out they believe that the original understanding should control constitutional interpretation unless it would produce results that conflict with their political ideology.”
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Aziz Rana, associate professor of law: His writing and research centers on American constitutional law and political development. Rana is the author of “The Two Faces of American Freedom,” published by Harvard University Press:
“Liberals will rightly view this decision as a victory, given that the court could very well have effectively banned affirmative action in higher education.
“But in many ways the fact that such a decision counts as a ‘victory’ speaks to the dramatic shifts in equal protection jurisprudence since the Civil Rights era and the extent to which liberals remain on the legal defensive in debates over racial equality. Indeed, the Court's switch in recent decades to a language of diversity to uphold such programs only underscores these changes.
“In practice, the focus on diversity has allowed a small range of race-conscious programs to withstand strict judicial scrutiny – at least in theory – while signaling the Court's basic retreat from viewing the Fourteenth Amendment as a tool for remedying longstanding and continuing forms of racial discrimination.”
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Sheri Lynn Johnson, professor of law: Johnson currently teaches constitutional and criminal law, and supervises Cornell Law School’s post-conviction litigation and capital trial clinics:
“It’s sad that the best that can be said for the Court’s decision in Fisher is that it could have been worse.
“True, the Court affirmed the value of diversity, and true, the Court did not strike down an affirmative action program. But this Court was and remains unwilling to say that remedying racial discrimination is a compelling state interest. It also was and remains pretty much uninterested in eradicating the pervasive effects of longstanding racial discrimination.
“I continue to hope for more vision and more courage.”
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