Scalia’s Death Could Affect Affirmative Action Lawsuits

The death of Supreme Court Justice Antonin G. Scalia could affect the Court’s upcoming decision in Fisher v. Texas, an affirmative action case that experts say may change the admissions processes of universities including Harvard.

In 2013, the Supreme Court first heard Fisher v. Texas, a case that involves a white woman who, after being denied admission to the University of Texas at Austin, filed a lawsuit against the school alleging that the university discriminated against her because of her race. The Supreme Court initially ruled that a lower court made a procedural misstep, and eventually a circuit court ruled in favor of the University of Texas. Plaintiff Abigail N. Fisher later appealed that ruling, and the Supreme Court is currently re-hearing the case.

Scalia in 1992
Antonin G. Scalia speaks on November 18, 1992 in this Crimson file photo. Scalia, who passed away over the weekend, graduated magna cum laude from Harvard Law School in 1960.

Meanwhile, Harvard is engaged in a lawsuit accusing the University of discriminating against Asian American applicants through its use of race-based affirmative action. That suit is on hold pending results of the Fisher case. Both Harvard University and Law School Dean Martha L. Minow have filed amicus briefs to the case supporting affirmative action, and University President Drew G. Faust has repeatedly pledged a “vigorous defense” of the policy in admissions.

The Fisher case, which involves a public institution, may not directly impact Harvard’s admissions practices. But, some experts say, it remains possible that the Court’s ultimate decision could affect Harvard and peer institutions because of Title VI—legislation requiring institutions that accept federal funding to follow government guidelines on matters of civil rights.

Harvard Dean of Admissions and Financial Aid William R. Fitzsimmons ’67 declined to comment on the case through a spokesperson.


Another disruption in the Fisher case’s proceedings could affect the Supreme Court’s eventual ruling. The absence of Scalia’s conservative voice casts a particularly large shadow on the case because the Supreme Court justices’ opinions on affirmative action are “rather evenly divided,” according to Kerry B. Melear, an associate professor of higher education at the University of Mississippi.

The Court will now make its decision—expected by the end of June—based on the votes of only seven justices, rather than the usual nine. Justice Elena Kagan, a former Dean of Harvard Law School, recused herself because she worked on the case during her tenure as U.S. Solicitor General.

“It’s still possible with only seven justices participating that what’s happening in Texas could be struck down,” Peter F. Lake ’81, a professor at Stetson University College of Law, said.

Scalia was “one of the strongest voices on the Court opposing race-conscious admissions,” Lake added. Commentators criticized Scalia for a December statement suggesting that some African-American students did not belong at elite universities.

Without Scalia’s reliably conservative presence in the Court, the Fisher decision could be even more closely contested.

Lake said the remaining members of the Court are now widely perceived as split, with three liberal and three conservative justices and one “swing vote,” held by Justice Anthony M. Kennedy.

Edward Blum, who led Fisher’s initial case against the University of Texas and is now spearheading the lawsuit against Harvard, also said the case is noteworthy because of the difference of opinion between the justices.

“The Fisher case is one of the few high-profile cases in which a majority [of the Justices] could exist to either uphold the University of Texas’ policies or strike them down,” Blum said, adding he hoped the Supreme Court would strike down affirmative action at the University of Texas.

The court’s decision in the Fisher case could also nullify Blum’s lawsuit entirely if the interpretation of Title VI ultimately ends the consideration of race in admissions at private colleges as well as public.

“What happens in the litigation in Fisher will be something of interest and importance for private colleges as well,” Neal H. Hutchens, an associate professor of education at Pennsylvania State University, said. “The direct holding would be in relation to public colleges, but depending on the language in the ruling, that is certainly going to be looked at in terms... of Title VI.”

Hutchens added that if the Supreme Court decides to prohibit the use of race-based affirmative action at colleges, more court battles would likely follow.

Lake expressed concern about the possibility that the Supreme Court’s decision on Fisher could bring further confusion and litigation about admissions processes.

“Higher education deserves a clearer answer, one way or the other,” Lake said. “It isn’t functional for so many American young people to sit back and wonder, ‘What’s the standard by which I’m going to be admitted to college?’”

—Staff writer Aidan F. Langston can be reached at Follow him on Twitter @AidanLangston.


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