11:55am

Mon June 24, 2013
Law

Supreme Court Sends Affirmative Action Case Back To Lower Court

Transcript

RENEE MONTAGNE, HOST:

It's MORNING EDITION from NPR News. I'm Renee Montagne.

DAVID GREENE, HOST:

And I'm David Greene. Good morning. The United States Supreme Court has sent a high-profile affirmative action case back to the lower courts. The case Fischer v. the University of Texas concerned the admissions policy at the University of Texas, which uses race as one factor for some slots. For more on this case, we have NPR senior editor Ron Elving - senior Washington editor Ron Elving and our justice correspondent Carrie Johnson, both with me in the studio. Good morning to you both.

RON ELVING, BYLINE: Good to be with you, David.

CARRIE JOHNSON, BYLINE: Good morning.

GREENE: So, Ron, let me begin with you. Does this decision from the court change what is legally acceptable in this country when it comes to affirmative action?

ELVING: It does at the University of Texas. Their plan has been specifically shot down by the Supreme Court. Whether it's going to change the broad definition of affirmative action remains for some further action. For example, the court said that you're not applying the standards that we gave you to apply to affirmative action programs. That is speaking to the other courts. You should be applying the strict standards that we gave you back in 2003 and to some degree all the way back to the Bakke case in 1997. And unless you do that, we're going to strike down the affirmative action plans that get brought before us.

GREENE: Before we get to the specifics of that case, let me just make sure that I understand. So the Supreme Court had dealt with affirmative action on college campuses in the past and said that it was one consideration that colleges could take into account. They set some pretty strict limits on it, and they're saying that this court didn't even deal with that. So those - that whole program the court allowed in the past remains allowable today in the country.

ELVING: Look, it's a little murky for a lot of the courts. It's a little murky for a lot of universities, trying to figure what exactly is OK and what's not in these cases. So the Supreme Court has said we meant what we said back in 2003. And by a 7-1 vote, which is not a close vote in the Supreme Court - we're used to a lot of 5-4s. In a 7-1 decision, the court said we don't think you applied our 2003 standard properly to the University of Texas. So we're throwing out the University of Texas plan, but we're willing to look at some others. And let's bear in mind the court has already taken another big affirmative action test case for next session. So we're expecting to see this all argued again with respect to the University of Michigan next year.

GREENE: OK. So, for now, the court essentially says, as you said, Ron, we meant what we said in the past. So that not much changes, but they basically say that this is program at the University of Texas not allowed. They sent it back to the lower courts. Carrie Johnson, remind us about this specific case, remind us who Abigail Fisher is.

JOHNSON: Abigail Fisher is a white student. She applied to the University of Texas back in 2008 under the program that UT has in place at the time, and she did not get in. The UT has a special program. It allows 10 percent of - it allows people who graduate in the top 10 percent of public school classes automatic admission to the University of Texas. And then for the rest of the slots, it takes in a whole host of factors, including race. Race is just one of them. And to be clear, the high court today, led by Justice Anthony Kennedy, said that the lower courts did not consider the UT plan under its regime for affirmative action, and that it needed to take - the lower courts needed to take a much closer look, a more searching look at that plan. It didn't knock out the plan altogether, but it raised serious doubts about it, David.

GREENE: So we could see this case back again at some point to the Supreme Court.

JOHNSON: Quite clearly and not - maybe why this decision got seven votes, instead of 5-3.

GREENE: Yeah. We've been seeing a lot of close decisions, this one 7-1, Justice Kagan who recused herself. But I mean, is this basically the court bucking this, kicking it down the road for kind of dealing with it in a bigger way later?

ELVING: In a sense. Now, a closer reading may reveal that the court is showing more cards that we have necessarily been able to perceive at this point. But it does appear that particularly justices Breyer and Sotomayor who would be expected to uphold affirmative action based on their previous behavior and also on the questions that they asked in the oral arguments. In this particular case would have been friendlier to the Texas program. But essentially the issue that was joined here was it made it possible for the case to be pushed off or pushed back on the lower courts and then for the question to be pressed into the next session.

GREENE: NPR's Ron Elving, NPR's Carrie Johnson, thank you both for coming in.

JOHNSON: Thank you.

ELVING: Thank you, David. Transcript provided by NPR, Copyright NPR.

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