As in many years recently, the United States Supreme Court waited until the last week of its term to issue decisions in a number of highly-visible cases. It has been one of those weeks when, if I was at my desk, I found myself with a browser tab open to the New York Times homepage, and I was constantly refreshing my screen to see if there were any updates. One of these cases relates directly to education; another affects many of the members of our College of Education community.
The most relevant case for many of us in education was the decision in Fisher v. University of Texas at Austin, a case challenging the University of Texas’s use of affirmative action in undergraduate admissions. Fisher was the first major case involving affirmative action in higher education since the Court upheld its use in Grutter v. Bollinger 10 years ago. Abigail Fisher, a white woman, applied for admission to the U. of Texas in 2008 and was denied admission. She sued the university, claiming that its use of race in its admissions process disadvantaged her and was a major factor in being denied admission. She and her lawyers claimed that the use of race in this fashion violated the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.
In Grutter v. Bollinger, the Court had upheld the right of the University of Michigan Law School to use race in its admissions process as long as such use was a “narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” The primary question in the Fisher case was whether the University of Texas’s use of race in its admissions process was in fact “narrowly tailored.” Many observers believed that the Supreme Court – which is generally seen as having a more conservative membership than the court that ruled in Grutter – would use Fisher as an opportunity to overrule the early decision, and outlaw the use of race in any fashion in admissions decisions.
To the great relief of many in higher education (and likely to the consternation of others), in a 7-1 decision inFisher the Court opted not to take on the direct question of the constitutionality of the use of race in admissions. Rather, it opted for a more narrow ruling – one that some reporters described as “punting” on the question – by sending the case back to the 5th Circuit Court of Appeals for review. The Supreme Court ruled that the appellate court should not have accepted at face value the university’s claim that it was using race in an acceptable and legal manner, and that the appellate court should re-hear the case and apply the legal standard of “strict scrutiny” to the university’s use of race in the admissions process.
One could see that as a win-win decision; the supporters of affirmative action could declare victory by stating that affirmative action, as manifested by the use of race in admissions, was still allowable under the law. The opponents argued that the legal standard of “strict scrutiny” would in the great majority of circumstances disallow the use of race in admissions, and at least one predicted that the ruling would set off “a wave of litigation against colleges” challenging their use of affirmative action. We will have to wait and see if this “wave of litigation” occurs or not. For now, the U. of Texas has said that it will continue its current affirmative action policies and defend them in court.
In the second case United States v. Windsor, which was just handed down this morning, the Court ruled that the federal Defense of Marriage Act (DOMA) violates the Fifth Amendment to the Constitution. This legislation, passed by Congress and signed into law in 1996, prohibited the federal government from recognizing any marriage between two people of the same gender, thus denying them access to over 1,000 federal benefits, including spousal Social Security benefits, tax advantages, and the like.
This federal law was originally challenged by Edith Windsor, a New York resident who was legally married to another woman in Canada, and whose marriage there was recognized in the state of New York (the women were married in 2007, before New York passed legislation legalizing gay marriage). When her wife died, Windsor was hit with an estate tax bill of $363,503, an amount she would not have had to pay if she were married to a man. She paid the tax bill, but then filed suit challenging the constitutionality of DOMA.
In a narrow 5-4 ruling, with Associate Justice Kennedy joining the four other more liberal justices (Kagan, Sotomayor, Breyer, and Ginsburg) and writing the majority opinion, the court found that section 3 of DOMA (which prohibits the provision of federal benefits to marriages between individuals of the same gender) does violate the Fifth Amendment. Justice Kennedy wrote:
The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.
What relevance does this case have to education? None directly, but it does have important implications for the many members of the MSU College of Education community who are married to partners of the same sex, or who may be contemplating entering into such a marriage. Those of our valued faculty, staff, and students who are gay, lesbian, or bisexual will now enjoy all the same protections and benefits under federal law as do their heterosexual colleagues.
Gay marriage and DOMA are controversial issues. But to those in our community who have been so negatively affected by this federal legislation, or who have close relatives, friends, and colleagues who have been impacted, it is a matter of basic fairness. And it is affirming to have the Supreme Court agree.