A Narrow Escape for Affirmative Action

In October, it looked like the Fisher decision would fiercely split the Court. Instead, today's compromise will make race-conscious admissions slightly harder, but not impossible.
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Plaintiff Abigail Fisher at a Supreme Court appearance in October 2012 (Susan Walsh/AP)

One of the Supreme Court term's most seemingly divisive cases whimpered but did not end Monday. The result is not just a reprieve but a mild reaffirmation for affirmative action in higher education admissions.

Raw feelings were on display on both sides at oral argument in Fisher v. University of Texas last October. After that argument, no one questioned that Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito hate the very idea of racial preferences in admissions. At the same time, Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor stoutly support these plans. Roberts sounded more like a prosecutor than a judge as he questioned the university's good faith; Sotomayor was similarly scathing when she told the lawyer for the challenger that he didn't want to overrule the court's precedent, "you just want to gut it."

April and May came and went. Fisher was the last case outstanding from the October session. Monday, the clouds parted: The University of Texas did not quite win; but it definitely didn't lose. Roberts, Kennedy, Breyer, Alito, and Sotomayor, ended up singing sweetly in chorus. Justices Antonin Scalia and Clarence Thomas concurred, writing separately to stress their opposition to affirmative action but approving the result in this case. Only Justice Ruth Bader Ginsburg dissented, arguing that the result was not favorable enough to affirmative action. (Justice Elena Kagan recused herself.)

Between 1997 and 2004, the University of Texas was forbidden by a lower court to use affirmative action in admissions. Instead, it followed a plan devised by the legislature in which any student graduating in the top 10 percent of a state public high-school class was guaranteed admission to the University. Because the races in Texas are sharply divided by town and county lines, this produced a gain in racial diversity. However, the minority students tended to cluster in a few schools, such as education and social work, with relatively few entering programs such as business and engineering.

In 2003, the Supreme Court reaffirmed the permissibility of affirmative action in a case called Grutter v. Bollinger. After that decision, the University supplemented the "top ten" plan with a limited plan using "race as a plus" for some undergraduate applicants. The program produce more minority entrants, and diversified their programs. Abigail Fisher, a white Texas resident, applied for admission in the fall of 2008 and was rejected. She sued, claiming she had been rejected on the basis of race. Both the District Court and the Court of Appeals dismissed her case, citing the Grutter precedent. Grutter, though, was a 5-4 decision. When the Court granted certoriari last year in Fisher, Justice Sandra Day O'Connor, the author of Grutter, had been replaced by Justice Alito, a visceral foe of affirmative action. The stage seemed set for a sudden reversal of the precedent.

Instead, five of the seven Justices in the majority explicitly reaffirmed Grutter, and its predecessor, Regents v. Bakke, Monday. "We take those cases as given for purposes of deciding this case," Kennedy (a Grutter dissenter) wrote for the majority. What that means is that, for the moment, racial diversity in the classroom is still a "compelling interest," meaning that governments may pursue it using race-conscious means. In the four decades since Bakke, the Court has consistently approved the idea of diversity, but insisted that it be pursued only by means "narrowly tailored" to achieve it. In layman's language, "narrow tailoring" means that race-conscious admissions must be "necessary" to achieve diversity; if "race-neutral means" would attain it as well, then race could not be used.

Conservatives had ridiculed the very notion of "diversity" as a compelling interest. Justice Thomas called it a question of interior decorating -- professors prefer classrooms of a certain hue, he wrote in his dissent in Grutter. That argument seemed to appeal to Roberts and Alito last October; but Kennedy's opinion Monday, which both conservatives joined, explicitly repeats the rule of Bakke and Grutter that "the attainment of a diverse student body ... is a constitutionally permissible goal for an institution of higher education."

Though the opinion was a partial defeat for Abigail Fisher, it was also a small step forward for foes of affirmative action. The seven justices joining Kennedy's opinion concluded that the Court of Appeals had not applied "strict scrutiny" correctly. As the majority read the opinion below, the Fifth Circuit had decided that UT's officials were acting in good faith, and thus merited deference from the courts. Not good enough, the Court said Monday. "Strict scrutiny must not be strict in theory but feeble in fact," Kennedy wrote. The Court sent the case back down for a decision "whether the University has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity." As Lyle Deniston explains, this will encourage enemies to affirmative action to litigate this question in cases around the country.

The divisions within the Court remain. Both Scalia and Thomas wrote separately to stress that they believe Grutter should be overturned whenever there are five votes. (Thomas charged that advocates of affirmative action are morally as depraved as John C. Calhoun and the supporters of antebellum slavery; but he agrees that this case does not call for reexamining Grutter.) Justice Ruth Bader Ginsburg said that Texas's current program was just fine. The talk of "race-neutral" means from the majority was hypocrisy, she charged. After all, the Court pretended the "top ten" plan was race-neutral, when its obvious intent was to use the state's racial-geographical divisions as a pretext for diverse admissions. "[O]nly an ostrich could regard the supposedly neutral alternatives as race unconscious," she wrote. Quoting her own dissent in Grutter, she repeated that measures "that candidly disclose their consideration of race [are] preferable to those that conceal it."

Coming after last week's compromise opinion in Arizona v. Arizona Inter Tribal Council, the Fisher may signal a return to old-fashioned horse-trading behind the Supreme Courtroom's velvet curtain. Both the Roberts-Alito and Breyer-Sotomayor axes gave up strong rhetorical positions for an opinion that mutes the true dispute. If the trend continues, the results can only be good. A 7-1 opinion, even if less than crystal clear, gives the nation more guidance than would the 3-3-2 monstrosity that has haunted my dreams. And a decline in the level of self-righteousness from the bench, however brief, can only be good for the Court and the country.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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