Northwestern lawyer: Supreme Court ruling on affirmative action a ‘partial victory’

Patrick Svitek, Summer Editor

The Supreme Court’s decision today to pass on a major ruling on affirmative action in college admissions is a “partial victory” for Northwestern and nine other schools that filed an amicus brief championing diversity in higher education, according to the University’s top lawyer.

“It left intact — at least for now — the principle that race can be part of a holistic review in admissions decisions,” NU general counsel Tom Cline said in an email to The Daily.

The justices voted 7-1 to send Fisher v. University of Texas at Austin back to the lower courts, where the school’s efforts to admit minority applicants are likely to face more skepticism. Plaintiff Abigail Fisher, who is white, claimed she was rejected from the University of Texas at Austin five years ago because of her race.

In a majority opinion written by Justice Anthony Kennedy, the court argued lower judges did not apply “strict scrutiny” to UT-Austin’s race-conscious admissions program and determine whether it was “narrowly tailored” to reap the educational advantages of diversity.

(Affirmative action panel discusses potential impact of Fisher v. University of Texas on Northwestern)

Political science and sociology Prof. Anthony Chen said the decision raises new questions about “what kind and quality of evidence” a college or university will have to provide to prove there are no feasible alternatives to considering race as an admission factor.

“Part of what the Supreme Court is saying is if colleges say diversity is good … we have to defer a little bit,” but not completely, said Chen, who is working on a new book about affirmative action in college admissions.

Although Fisher v. University of Texas at Austin dealt with affirmative action at public schools, University President Morton Schapiro said before oral arguments last year that it is important for NU to be “on the record” about its position. In an interview with The Daily during Winter Quarter, he predicted the decision would not have an “enormous impact” on NU.

“We’re still going to be able to analyze the suitability of an applicant based on his … ability to prove himself,” Schapiro said.

(Supreme Court hears affirmative action case)

Nonetheless, the University is keeping an eye on the case’s trajectory moving forward.

“Where things go from here remain to be seen,” Cline said in the email.

Chen agreed it is unclear how Fisher v. University of Texas at Austin will be handled when it returns to the New Orleans-based 5th U.S. Circuit Court of Appeals.

“What’s clear is the Supreme Court is asking the lower courts to try again,” Chen said. “But then again, the question that arose for me is what are they going to do when they try again?”

Northwestern jointly filed its brief with the California Institute of Technology, Carnegie Mellon University, Case Western University, Emory University, George Washington University, Rice University, Tulane University, the University of Rochester and Washington University in St. Louis.

The Supreme Court heard oral arguments for the case on Oct. 10, 2012.

Summer editor Patrick Svitek can be reached at [email protected] Follow him on Twitter at