In a much-watched case on affirmative action, Fisher v. University of Texas, the Supreme Court didn’t decide the big issue — whether to reverse Grutter v. Bollinger, which allowed universities to use race as one of several factors in deciding whom to admit. Instead the justices held that the lower court didn’t apply Grutter properly in Fisher: that is, in holding the university to a strict-scrutiny standard in the use of race. Strict scrutiny would require not only a compelling interest but also a narrowly tailored program and one that had exhausted other outcomes.
The court held: “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” As for Grutter itself, which says that racial diversity can be a compelling interest, the court never really considered overturning it, as Justice Antonin Scalia pointed out in concurrence, because the plaintiff never asked the court to do that.
Instead, the court made clear how hard it will be for universities to use race as one of several factors. If Fisher made it harder on the defendant, two other cases announced by the court tightened up on discrimination lawsuits to the benefit of employers. In Vance v. Ball State, the court held that an employer is vicariously liable for the actions of a supervisor only if that supervisor is a real supervisor, with the power to hire and fire and make other employment decisions. And in University of Texas Southwestern Medical Center v. Nassar, it ruled that, to prevail in a retaliation case, a plaintiff must show that but for the retaliation case he would not have been fired. This is critical for employers who may find them stuck with an employee who once filed a discrimination case but should be let go or disciplined for performance reasons.
The bottom line: It is going to be harder to defend affirmative action cases and easier to defend run-of-the-mill discrimination and retaliation cases.