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In Fisher, affirmative action survives again

In Fisher v. Texas, (Fisher 2), handed down on Thursday, race-conscious affirmative action once again survived a constitutional challenge by the skin of its teeth, which is to say by a single vote.  Justice Kennedy, who the first time the case reached the Court (Fisher 1) wrote an opinion remanding the case with a revised standard that made its survival less likely, again wrote for the majority.  His opinion this time suggests that the strict standard he advocated in Fisher 1 may not be so strict after all.  To understand where we stand now requires a bit of history.

The first constitutional challenge to affirmative action in higher education reached the Court in 1974, but it was dismissed as moot because the plaintiff had been allowed to attend the law school whose policy he protested during the litigation, and he was about to graduate.  The Court did not revisit the issue until 1978 when in the landmark case, University of California v. Bakke, the Court for the first time upheld the constitutionality of race conscious admissions.  The controlling opinion in Bakke was subscribed to by only one Justice, Justice Powell.  Unlike the four Justices who concurred in the result, he saw only one interest sufficiently compelling to justify affirmative action, the educational values served by a racially diverse student body.  Powell’s then idiosyncratic justification became not only the constitutional standard but over time came to be a widely accepted, important rationale. 

With little changed except the composition of the Court (in ways that suggested it would have less sympathy for affirmative action) foes of affirmative action again sought to outlaw it; this time in the companion cases of Gratz and Grutter v. BollingerGratz held that the University of Michigan’s system for undergraduate admissions, which gave minority students extra points in a quantitative admissions evaluation, was unconstitutional.  It upheld, however, the University of Michigan Law School’s system of holistic review in which race was one of many factors.  In so doing, Grutter indicated that courts should generally defer to a school’s judgments that campus racial diversity was a compelling educational interest and, if so, to the school’s judgment that their efforts to enhance diversity were sufficiently “narrowly tailored” to be consistent with the Fourteenth Amendment.  In addition, by discussing in dicta the needs of American businesses and the military for racially diverse personnel, Grutter appeared to expand relevant diversity justifications for affirmative action.

Fisher, unlike the prior two cases, did not involve a frontal assault on affirmative action.  Rather the plaintiff argued that UT-Austin achieved significant racial diversity through the state’s Ten Percent Plan, which guaranteed students that they would be admitted to the state school of their choice if they  finished in the top 10%  of their high school graduating class (later tweaks mean the cutoff for getting into UT-Austin  is now about 8%).  Ten percent admissions led to a student body that is now about 4% African American with considerably higher demographically driven proportion of Hispanics.  In each case these figures are largely due to the substantial de facto segregation of Texas secondary schools.  Given ten percent admissions and the alleged availability of other means of upping minority enrollments, Abigail Fisher argued that allowing race to be considered in constituting the quarter of each class admitted outside the Ten Percent Plan was unconstitutional. 

In Fisher 1, Fisher did not win the war, but she won a significant battle.  In remanding the case to the Fifth Circuit, the Supreme Court overturned one prong of Justice O’Connor’s opinion in Grutter.  The Fisher majority held that while deference should be given to educators on the need for affirmative action, no deference was owed on the question of whether the means a school used to achieve desired diversity was sufficiently narrowly tailored to survive strict scrutiny. It appeared to numbers of observers, myself included, that the Fifth Circuit was being invited to find either that the use of race in UT-Austin’s holistic admissions system was too broadly tailored to survive strict scrutiny, or that the case should be remanded to the district court for an evidentiary hearing on the narrow tailoring issue.  Apparently the parties felt the same way, for UT-Austin urged the Fifth Circuit to remand, while the plaintiff’s attorneys argued that a remand was not necessary.

Fisher had reason to feel optimistic about the return of the case to the High Court.  Although the Justices have often said that strict scrutiny does not mean “strict in theory but fatal in fact,” once strict scrutiny has been found applicable, the law or policy at issue in a case has almost always been overturned.  Kennedy’s opinion in Fisher 2 suggests, however, that strict scrutiny, at least as applied to the use of race in higher education admissions, is not just survivable but also not as strict as one might have thought.  Kennedy’s opinion contains no language that softens the mandate of no deference to a University’s narrow tailoring judgment.  Nevertheless, the opinion appears to defer considerably to the University’s assertions regarding the efforts it made to expand minority enrollments without considering race, including extensive outreach and the creation of new scholarship programs, and to the University’s assertions that these efforts did not produce the diversity it needed.

The fact that the Court was willing to accept these claims largely on the University’s say so and to deny Fisher the opportunity to probe them and to offer counter evidence to a district court is, no doubt, a great comfort to the higher education community.  Kennedy’s opinion does not, however, give UT-Austin a slam dunk victory, nor guarantee that its admissions processes will be immune from further challenge.  Rather it requires the University to continually monitor its admissions processes and to ascertain whether race consciousness in holistic admissions remains necessary to achieve its diversity goals.  The opinion also suggests that the school should be collecting kinds of data that for good reason were not available in the current case.

Fisher 2 also contains a powerful dissent by Justice Alito, in which Chief Justice Roberts and Justice Thomas joined.  Much of the Alito opinion is based on information found in amicus briefs that is not part of the case record, but apart from this, it is mainly a fair commentary.  Two portions of the Alito dissent are, however, troublesome in the racial memes they invoke.  Several pages of his dissent are devoted to the alleged underrepresentation of Asian Americans on the UT-Austin campus, with the suggestion they are being discriminated against when preferences are given other minorities.  Setting race against race in this way and using Asian Americans as a stalking horse against affirmative action is a tactic that foes of affirmative action are increasingly using, including in ongoing litigation against Harvard University and the University of North Carolina.  In this portion of his dissent, Justice Alito reflects views and claims in an amicus brief submitted on behalf of Ms. Fisher by the Asian American Legal Foundation, an organization which seems to exist mainly to fight affirmative action.  Alito never mentions an amicus brief submitted on behalf of 73 different Asian-American associations that sees no conflict between affirmative action for African-Americans and Hispanics and the interests of Asian communities. 

Equally troubling is Justice Alito’s suggestion that UT-Austin faulted the Ten Percent Plan “for admitting the wrong kind of African-American and Hispanic students.” (emphasis in original)  Rather than set students of different races against each other, as he does with Asians, here Alito writes in ways that seem calculated to sow dissent among minorities by social class.  The bit of truth that motivates his claim is that during the course of the litigation UT-Austin suggested that one benefit of race-conscious holistic admissions was that it enhanced diversity within diversity.  It did this by admitting minorities who were more likely to have experienced an integrated education than Ten Percent Plan admittees and so were more accustomed to interacting with white peers, as well as by advantaging students who as judged by SAT scores were among the most able minorities graduating from Texas high schools and who were far more likely than Percent Plan admittees to come from families in professions or other occupations that require advanced education.  Nothing about this aspect of the University’s defense, an aspect it downplayed in the Fisher 2 litigation, suggested that the University was anything but proud of those African-American and Hispanic students admitted through the Ten Percent Plan or that it devalued the diversity they offered.  The notion that the school regarded Percent Plan minorities as being minorities of “the wrong kind” is both insulting and absurd.  Yet Alito goes on at great length to suggest that in its desire to add to the number of minorities on campus and to increase the experiential and economic diversity of its minority population, the University is buying into racial stereotypes that insult poor or segregated minorities.   To perceive racism here says more about the perceiver than about the University.

We may or may not soon revisit the constitutional issues Fisher addressed.  Whether we do or not is likely to depend more on politics than on the law.  At the moment there appear to be four votes (Justices Brier, Ginsburg, Kagan and Sotomayor) almost certain to support race-conscious admissions plans and three (Justices Alito, Roberts and Thomas) equally likely to strike it down.  Justice Kennedy is still in the middle, but now appears friendlier to such plans than he once did.  The balance, however, is likely to be determined by the upcoming presidential election and the justice(s) the next president will appoint.  If they seem friendly to affirmative action, I expect that few if any cases challenging affirmative action will be brought.  If new justices appear unfriendly, we can expect the issue to be revisited soon.

Editor’s Note: For more from Governance Studies on the Fisher v. Texas case, read Ben Backes post on the Brown Center Chalkboard, highlighting what a post-Fisher II world looks like.

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Richard Lempert

Former Brookings Expert

The Eric Stein Distinguished University Professor of Law and Sociology Emeritus - University of Michigan

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