Deciding not to decide - it's a way for the Supreme Court to deal with a contentious issue by awaiting more clarifying opinions from the lower courts.
In a 7-1 decision regarding the closely watched affirmative action case Fisher v. University of Texas, the Supreme Court remanded the case back to the federal district court from which it came with instructions to give the matter greater scrutiny.
This is a partial victory for opponents of affirmative action because the lower court upheld the formula used by the university to admit minority candidates to its law school.
Wall Street Journal:
The court's ruling on Fisher v. University of Texas was 7-1, with the majority opinion by Justice Anthony Kennedy. Justice Ruth Bader Ginsburg dissented, and Justice Elena Kagan, who was solicitor general when the Obama administration weighed in on the case, recused herself from the decision.
Justice Kennedy said the Fifth Circuit U.S. Court of Appeals made legal errors when it upheld the university program. The lower court should have scrutinized the university program more strictly, Justice Kennedy said.
The justices were ruling on the case of Abigail Fisher, who alleged the university rejected her because she is white.
Justice Kennedy said the Supreme Court wants the lower court to hear the case again "so that the admissions process can be considered and judged under a correct analysis."
UT gives automatic entry to any Texas student who graduates in roughly the top 10% of his or her high-school class. That program was designed to maintain ethnic and racial diversity after a 1996 federal-appeals-court ruling restricted affirmative action in Texas and nearby states.
But after 2003, when the Supreme Court voted 5-4 to reinstate affirmative action, UT quickly supplemented its top-10% plan with an additional admissions pathway that allowed consideration of race and other factors beyond grades and test scores. UT said that pathway was designed for middle- or upper-class children of African-American and Hispanic professionals who attend more competitive schools.
While the top-10% plan vastly expanded the number of Texas high schools sending graduates to the state's flagship campus, UT administrators frowned at having to accept applicants from less competitive high schools, whose top students often had lower test scores and poorer academic preparation than middle-tier students from leading suburban high schools that traditionally served as the university's principal feeders.
The university said the presence of better-off minority students could help dispel stereotypes that could be perpetuated by the presence of those admitted through the top-10% program.
The problem for the university is that it is seeking to redefine the very concept of affirmative action, and in so doing, make admission to the school race-based regardless of economic circumstance. In questioning the lawyers during oral arguments, Justice Kennedy and Justice Alito put it succinctly:
"I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don't think I've ever seen before," said Justice Samuel Alito.
When UT's lawyer, Gregory Garre, attempted to explain the admissions formula as a "holistic" review of individual attributes, Justice Kennedy heard something else.
"So what you're saying is that what counts is race above all," said Justice Kennedy, considered a swing vote on affirmative action. "You want underprivileged of a certain race and privileged of a certain race. So that's race."
Indeed. The 2003 decision Gutter v Bollinger said that race could be only one factor in admissions policies. The school's effort at a work around that used both race and economic circumstances to admit minority students but discriminate against whites of the same economic background was at issue.
The lower court could re-issue a similar opinion, addressing the issues in a more technically pleasing way to the high court. Or, it could split a few more hairs and send it back to SCOTUS for a more definitive decision.
Either way, we have not seen the last of this case - or of challenges to affirmative action.