gruder remains good lieu. gruder toer asked for be overruled and the invitation was out there and certainly a people thought that is how this case was going to come down. emember that justice kennedy was a dissenter in gruder. this ct that he authors and there are five votes as good law is big news. so affirmative action in higher education lives on. the second headline, i think, is fisher changed gruder. always, the devil is in the details. was faithful to grudener but the way he defined the university's burden under scrutiny is rather anding and some say it may redefine gruder. i read the fifth circuit opinion nd it is not like the fifth circuit forgot about graduator. it is not like they didn't cite right precedent. the opinion discusses graduator t length and indeed in discussing the standard of review it quotes graduator. justice faith language contend honest in on comes straight from the graduator majority. explanation for the reversal in fisher is that the tpeufifth it wrong and was ov verdeferential to

the opinion discusses gruder at length. in discussing the standard of view, it quotes gruder. one explanation of the reversal in fishery is that the fifth circuit got it wrong. the fifth circuit -- or extension of the reversal in fisher is that the sixth circuit got it wrong. it makes strict scrutiny stricter than the strict scrutiny that gruder embrace. which brings me to my last headline. fisher is going to spawn litigation over gruder. one consequence is that it is going to stimulate affirmative action lycian to the lower court. lucky for you lower court judges out there is that you get to look forward to that. this is a case that was decided at the summary judgment states. at the end of the opinion, justice kennedy applies the summary judgment may not be enough for this diversity and other universities to satisfy its burden of showing that its policy is narrowly tailored to the compelling interest. think like a child lawyer. what kind of proof would offer to satisfy fisher? what kind of proof to you need to show? you have to show you have tried it and it is not working. ev

the opinion discusses gruder at length. in discussing the standard of gruder. quotes one explanation of the reversal in fishery is that the fifth circuit got it wrong. ore fifth circuit -- extension of the reversal in circuits that the sixth got it wrong. it makes strict scrutiny stricter than the strict scrutiny that gruder embrace. which brings me to my last headline. fisher is going to spawn litigation over gruder. one consequence is that it is going to stimulate affirmative action lycian to the lower court. you lower court judges out there is that you get to look forward to that. this is a case that was decided at the summary judgment states. at the end of the opinion, justice kennedy applies the summary judgment may not be enough for this diversity and other universities to satisfy its burden of showing that its policy is narrowly tailog inred. lawyer.ke a child what kind of proof would offer to satisfy fisher? what kind of proof to you need ?o show you have to show you have tried it and it is not working. even though people say this opinion was a flop, i

the process is fes for our admi that due follow gruder will be used as we go forward this coming fall for admitting the next class. so it will not have any immediate changes. and what this case did today, it left intact the scheme that was put in place by bachy and gruder that a narrowly taleorred use of ethnicity and race is permissible in college admissions. >> the court said your school has to prove under strict scrutiny that there is no other way to achieve diversity than by the plan you have now that considers race as a factor. how will you do that given that you have this other plan in which the top 10% of high school students across the state are admitted, and that also allowed for a diverse class? >> well, the standard the court used, the strict scrutiny standard, which is generally applicable in cases of race, is the standard that we have litigated this case and designed our program with an eye to all along. we think we meet that standard, we think we will meet that standard when we go back to the fifth circuit. the automatic admissions standard that we used for 75% of our cl

>> as justice scalia points out, the petitioner didn't actually challenge gruder in this case. that's an issue for another day. i agree this is not an earth-shaking opinion. ms. fisher did win the case. the case will be remanded back to the fifth circuit. but essentially what the court did was clarify when it was willing to deaver to academic expertise and when it wasn't willing. the fifth circuit had interpreted the previous decision to require it to deaver not just on whether or not diversity is a compelling purpose but also whether the particular policy involved was narrowly tailored to serve that purpose. >> ifill: let me ask you both about some of the terms of art which we heard marcia coyle describe. strict scrutiny and narrowly tailored. lee bolinger, when they say strict scrutiny in this case, are they talking about... is the burden on colleges or universities or is the burden on the court that sent this case, the fifth circuit? >> these are technical terms of the equal protection clawtion, and i think the key thing for people to know is that when universities -- and le

on the 8-7 review he sides with the majority saying that the program passes muster under gruder. he might say i don't like this affirmative action program, it's instruct down. >> michael: that's really, really interesting stuff. stuff you don't know if you don't have mike sacks on the program. tell me, mike why was this such a strong ruling though. why did sotomayer and breyer join with kennedy? >> because i think if any affirmative action ruling comes back to the supreme court, what scrutiny means is it in the eye of the beholder. conservatives really just rejecting every affirmative action program as not meeting their narrow tailoring strict scrutiny review. regardless of the standard that is articulated, you'll see liberal divides over how one sees affirmative action. >> michael: yeah, that is interesting. the supreme court didn't have a sweeping ruling today, but does this say something -- what we learned today say something about how the group is thinking now? >> yeah, perhaps. the other cases that were handed down today were 5-4 decisions, and they were pro-business cases,

the big supreme court decision not overturned, gruder versus bollinger. justice o'connor said at some point, affirmative action would have to end. not yet. >> many people thought that case would resolve it now. can you use race as a factor. the question people were asking is, is the court going to look at this case and make it specific to texas and say, texas was a lot of tings that can add to a diverse student body. they accept the top 10% in every school in the state of people to get admitted to the school. that could lead to a more diverse student body. the question people are looking at is will the court say, that's enough in this particular case, that doesn't necessarily mean it would apply to other cases. as terry points out, they punted instead and said, send this back to the lower court, apply the right standard, and then let's talk. >> it may take time for this to get back to the supreme court. thank you, dan. the supreme court not done yet. major cases still to come on gay marriage and voting rights. we'll cover them when the decisions come, lik