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What to Make of Fisher v. Texas: An Interesting Punt on Affirmative Action?

University of Texas at Austin student Abigail Fisher speaks on the Supreme Court's affirmative action ruling

Supreme Court junkies need their own Edward Snowden or Bradley Manning for a window into the actions behind the action in Fisher v. Texas, the affirmative action case decided Monday. 

Court watchers and those on both sides of the issue had their own guesses about the likely result in the case. Many thought or feared that the case would end with a 5-3 decision (Justice Kagan had recused herself) that signaled the end of affirmative action in higher education. They expected Justice Kennedy to side with those who think affirmative action is unconstitutional, coming down off the perch, from which he never quite saw the 14th Amendment as barring all consideration of race in all circumstances but also never saw an affirmative action program he liked. Justice Kennedy might also have maintained his views of the 14th Amendment, but written an opinion  holding that the Amendment required scrutiny stricter than any affirmative action program could realistically meet.

It was also conceivable that the Court, per Kennedy, would hold that because the University of Texas had been able to achieve some racial diversity using its ten percent plan, embellishing the plan with a Grutter-like consideration of race did not meet Grutter’s “narrow tailoring” requirement. Others saw the lower court’s decision as being affirmed without opinion by an equally divided Court, with Justice Kennedy swinging to the side of the Court’s liberals, perhaps because he thought the Grutter precedent upholding affirmative action was too fresh to be overruled or maybe because he was so conflicted as to think that no opinion was better than any opinion one could write. 

It was even possible, after last year’s health care decision, to imagine Chief Justice Roberts siding with the University, out of respect for precedent and his concern for the institutional legitimacy of the Court, which would have been questioned by critics who could, with justification, say that the only change affecting the Court’s position since Grutter was Justice O’Connor’s replacement by Justice Alito. 

No one, however, expected a 7-1 decision with the lone dissenter being the liberal Justice Ginsburg. About the only prediction Court watchers got right was that if there was an opinion in the case, Justice Kennedy would write it.

The sense that there was more to this case than the opinion that eventually issued is stoked by the opinion’s content and its timing. The written opinion is so modest and does so little to resolve the difficult issues one expected the Court to address that it is hard to understand why its announcement was put off until the high drama days at the end of the term. Moreover, only Justice Thomas’s concurring opinion reads like an effort that required considerable thought and work. Thus it is easy to imagine the justices trading opinions throughout the many months Fisher was under advisement, with positions shifting until in the end a decision to punt and a barebones opinion were the only conclusions on which a coherent majority could agree. It could, however, be that the long delay was simply an accommodation to Justice Thomas who needed time to get what is in many ways an eloquent concurrence just right, or it might reflect a back and forth tweaking of the opinion, with a line added or subtracted here and a sentence there, to get everybody but Justice Ginsburg to sign on.

It is difficult not to see the decision in Fisher as a punt, for the matter was, in a vernacular so accepted as to almost merit the adjective “literally,” kicked back to the Circuit Court. Moreover, the Court notes that in Grutter, unlike Fisher, there was a full trial at the District Court level. The invitation for the Circuit Court to kick the matter down to the lower court for fact-finding is inescapable. Still, there are matters of consequence in the decision. 

The first is the narrow outcome: sending the case back so that a lower court can more adequately determine whether there is factual support for the University’s claim that it needed race conscious admissions to attain a minimally acceptable level of campus diversity. The clear implication, bolstered by citations to Bakke and Grutter with apparent approval, is that educational diversity is a compelling state interest within the meaning of the 14th Amendment. If only by implication, Justice Kennedy’s acceptance of this claim seems less grudging than it has in past cases and is clearer than it was in Grutter

Particularly important is that the Court decided to remand rather than to reverse even after acknowledging that under the prior Texas plan the University had been able to achieve 4.5% black enrollment and 16.9% Hispanic enrollment. This means that the Court recognizes that an educational institution may require more than a token number of minorities on campus to meet a compelling interest in diversity. Moreover the remand decision indicates that although the Court does not necessarily agree that the data Texas most relied on to justify its return to race-conscious admission (a survey showing that despite the number of minorities on campus, many courses had zero or one minority students) is sufficient justification for its program, by not ruling the evidence insufficient, the Court acknowledges the possibility that data of this sort can demonstrate a compelling state interest.

If this is what liberals got – along with the continued viability of race-conscious affirmative action – conservatives do not leave the decision bereft of all solace. In Grutter, Justice O’Connor seemed to say that that the courts should not second guess academic judgments about whether campus diversity was educationally important or about whether race conscious admissions plans like that approved in Grutter were sufficiently narrowly tailored to meet constitutional standards. Thus although Grutter gave lip service to the strict scrutiny standard, it appeared to delegate to university officials considerable discretion to determine not only whether enhanced diversity was needed to meet valid education goals but also to decide what were the narrowest possible means to achieve these goals.

The Fisher Court agreed with Grutter’s conclusion that when it came to the educational value of levels of diversity, the judgments of university officials “ based on … expertise and experience” deserved deference, but the Court disavowed any suggestion in Grutter that deference should extend to the determination of whether the means a university used to achieve diversity were sufficiently narrowly tailored.  Moreover, the majority faulted the lower courts for beginning with a presumption that university officials had acted in good faith in deciding what was necessary to achieve diversity. Justice Kennedy explained:

[S]trict scrutiny imposes on the univer­sity the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice. . . .
Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice.

It is noteworthy that two of the Court’s three participating “liberals,” who are presumed to favor affirmative action, signed on to this position.  Moreover, in other cases, including cases of so-called benign discrimination, the strict scrutiny test has usually been the death knell for the racial classification under scrutiny. This is unlikely to be true in higher education, given Bakke and Grutter and the Fisher decision to remand rather than reverse, but it does leave an opening for a future Court to gut the Bakke-Grutter-Fisher permission to engage in race conscious admissions without coming right out and reversing the holdings in these cases.

In an era when both left and right complain of judicial activism, Fisher is about as far from an “activist” decision as one can get.  Not only did the Court not reach out to overturn Grutter or to condition the constitutionality of affirmative action on meeting standards impossible to achieve, but it also took care to indicate that its decision does not hold that affirmative action plans are constitutional.  Rather it said that this case did not raise the question of the constitutionality of affirmative action, and that it was taking the Court’s prior judgments in Bakke and Grutter “as given [only] for purposes of deciding this case.”  No doubt it was this careful confinement of the opinion that motivated Justices Scalia and Thomas to concur in the decision, although in separate opinions both said that they regard race-based affirmative action as unconstitutional.

Justice Thomas’s concurrence is interesting for another reason. Many observers, including many who have been deeply involved in the struggle for racial equality, attribute Thomas’s longstanding and intransigent opposition to affirmative action to idiosyncratic experiences that affected his psyche, such as the stresses of being an affirmative action beneficiary at Yale Law School (which he almost certainly was) or the traumatic nature of his Supreme Court confirmation, or, if they are even less charitable, to unprincipled opportunism that led him to take advantage of the value conservatives placed on having in their camp a black lawyer who was outspoken in his opposition to affirmative action. 

Put differently, attributions of motivations for Thomas’s views, at least from the left, tend to be all about him and not at all about the black experience. 

Justice Thomas’s Fisher concurrence calls this view into question. In it he deftly links arguments made in support of affirmative action with arguments made first to justify segregation, and then to oppose and delay desegregation. However off-base this linkage is (and I think it is far off base), it presents a different portrait of the roots of Justice Thomas’s hostility to affirmative action. It is a portrait that suggests the Justice’s comparison of his treatment at his confirmation hearings to a lynching was not hypocritical and manipulative but heart-felt, and it explains one of his rare comments from the bench—his interjection in Virginia v. Black, the 2002 cross-burning case, that "the cross was a symbol of [a] reign of terror"—and his lone dissent from the opinion in Black which saw cross-burning as protected free speech. Moreover, Justice Thomas’s concurrence in Fisher is consistent with his jurisprudential stance on many issues where, more than any other justice, he focuses on the form that words take and their literal meaning to the exclusion of the intent with which they are uttered. 

Thus, for Thomas the language in the University of Texas Fisher brief which says, “All aspire for a colorblind society in which race does not matter . . . . But in Texas, as in America, ‘our highest aspirations are yet unfulfilled’” is for all intents and purposes no different from the assertion that Kansas made in its brief in Brown v. Board of Education, “We grant that segregation may not be the ethical or political ideal. At the same time we recognize that practical considerations may prevent realization of the ideal.” It does not matter that the one statement was made in defense of a program aimed at promoting integration and racial equality and the other in defense of segregation and a status quo of racial inequality. Thomas finds, “no principled distinction between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits.” Whether the one is most likely true while the other was clearly false is of no moment to him. Elevating form above context and intent, a common characteristic of Thomas’s opinions, rarely makes for wise judging, but it is not unprincipled.

Some, no matter what their position on affirmative action, might celebrate Fisher for providing a welcome comeuppance to those who argue that when it comes to hot button, ideologically charged issues, the Court’s decisions depend not on legal analysis and precedent, no matter what the justices write, but on the ideological commitments of the nine people who hear the case. In Fisher, no mapping of ideology to votes would have predicted the Court’s division. Yet Fisher strikes me as an exception that does no more than prove the rule. It is not unreasonable to think that the Court came out where it did because there were four justices who would have found race conscious affirmative action unconstitutional, three justices who would have affirmed the decision below and one justice who found himself in the middle, neither ready to pull the trigger on race conscious affirmative action nor willing to approve of any specific instantiation.  

If the Circuit Court remands Fisher to the District Court for trial it may be a while before the case returns to the Supreme Court, if it ever does. Moreover, there does not now seem to be an equivalent challenge to race conscious admissions ready to bubble up in the Court’s queue. If before Fisher is heard again or the next case arises, a justice in either committed camp is replaced with a justice with different views, person-based predictions may do far better than they did this time around, and the fate of race conscious admissions may be definitively determined.

Editor's Note: As Chair of the University of Michigan Law School's Admissions Committee, Richard Lempert was the principal drafter of the affirmative action policy upheld in Grutter v. Bollinger and a witness for both the University and for student interveners in the trial of that case.

  • Richard O. Lempert is a Visiting Fellow in Governance Studies at the Brookings Foundation and the University of Michigan’s Eric Stein Distinguished University Professor of Law and Sociology emeritus. His research focuses on issues related to government bureaucracy, affirmative action and human subjects protection.

    From June 2008 until July 2011 he served as Chief Scientist and Basic Research Lead in the Human Factors/Behavioral Sciences Division of the Science and Technology Directorate in the Department of Homeland Security, and from June 2002 through May 2006 he took leave from the University of Michigan to serve as the Division Director for the Social and Economic Sciences at the National Science Foundation.

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