The Supreme Court Thursday bid a surprisingly firm farewell to Abigail Fisher. Whatever the next chapter in the saga of affirmative action in higher education admissions, this peculiarly persistent plaintiff will not write it.
Fisher’s campaign against affirmative action—which has lasted nearly a decade and occupied the Court’s docket not once but twice—ended in substantial defeat. Justice Anthony Kennedy wrote for a four-Justice majority in Thursday’s decision, Fisher v. University of Texas at Austin. For the first time in his judicial career, Kennedy gave his approval to a race-based affirmative-action program. And he did so in an opinion that clearly reaffirmed the constitutional rationale for such programs first enunciated by Justice Lewis F. Powell Jr. in the 1978 case of Regents of University of California v. Bakke and reaffirmed by the court majority in the 2003 case of Grutter v. Bollinger.
Thursday’s decision was only 4-3. Justice Elena Kagan, whose office participated in the case when she was Solicitor General, recused herself. Justice Antonin Scalia left little doubt how he felt at oral argument in December (African American students, he suggested, belonged at “lesser schools” than UT). But Scalia died in February, and the case was decided by the seven remaining justices. Kennedy was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. Justice Samuel Alito wrote a sharp dissent, joined by Chief Justice John Roberts and Justice Clarence Thomas. Thomas in a one-page dissent reaffirmed his conviction that all affirmative action is unconstitutional.
Kennedy was careful to clothe his opinion in narrow language that appeared to leave larger questions open. Thus, a nine-justice court (if such a unicorn is ever found in the wild) might one day reconsider the issue.
But Kennedy has now placed himself firmly in the Powell-O’Connor camp; he has bought the principle behind previous affirmative-action cases.
To begin with, it seems to have finally dawned on Kennedy that Fisher’s rejection by the University of Texas is no longer a live question. Wearily, he described the case as “a suit that has already persisted for eight years and cost the parties on both sides significant resources.” Fisher, he noted, “long since has graduated from another college, and the University’s policy . . . may have evolved or changed in material ways” since her rejection.
The rest of the opinion methodically refuted Fisher’s arguments against affirmative action. There is no Kennedy-esque paean to the nation’s greatness; but it is a careful refutation of arguments that have, to me at least, seemed grossly flawed from the beginning of the case.
The University’s plan was unconstitutional, Fisher argued, because it seeks to enroll a “critical mass” or minority students, but does not “set forth more precisely the level of minority enrollment” that “critical mass” would require. This argument has a dreamlike, Alice in Wonderland elegance. Kennedy noted what should have been obvious: Fisher wanted the court to strike down the program for lack of a number, and if the university gave a number, the court would also be obligated to strike it down as a numerical quota. “Since the University is prohibited from seeking a particular number or quota of minority students, it cannot be faulted for failing to specify the particular level of minority enrollment” that would fulfill its goal. Critical mass, Kennedy said, cannot be “elusory or amorphous”—it must consist of “concrete and precise goals.” But here, Kennedy wrote, UT had done exactly that, in its initial proposal, the year-long educational study that preceded it, and its continuing monitoring of the program.
Fisher’s also argued that only a relatively few students were affected by the race-conscious admissions program; because of this “minimal impact,” she argued, “considering race was not necessary,” and thus the program was not “narrowly tailored.” This argument is designed to burrow inside the rationale for affirmative action and explode it from the inside. If a program is unconstitutional because it only uses race a little, could it really become constitutional by using race a lot? Of course not; the court’s precedents make clear that the bigger the role race plays in an admissions system, the more suspect the system will be. “[I]t is not a failure of narrow tailoring for the impact of racial consideration to be minor,” Kennedy wrote. “The fact that race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring, not evidence of unconstitutionality.”
Fisher also argued that UT has already achieved a “critical mass” of minority students. That’s because the Texas legislature in 1998 adopted the “top 10 percent” plan, which guarantees admission to a UT school to any Texas student who graduates from a public high school in the top 10 percent of the class. Because Texas school districts are very racially segregated, that program produced a surge of minority enrollment. That diversity gain was the aim of the program, though by its terms it is “race-neutral.”
This argument, in effect, asked the court to set a kind of constitutional ceiling to the number of minority students a school can seek to enroll. This the Court refused to do. Instead, Kennedy noted that the university had studied how the 10 percent plan had affected campus atmosphere, and the degree to which some minority students in some of the institution’s schools still felt, and were, isolated in their field of study. “At no stage in this litigation has petitioner challenged the University’s good faith in conducting its studies,” he wrote with some asperity—aiming both at Fisher and her lawyers and at Alito’s dissent, which alleged the university was unworthy of trust.
This “good-faith” statement—echoed elsewhere in the opinion—is crucial. Opponents of affirmative action have argued for years that educational administrators cannot be trusted to use race, because they will employ hidden quotas. The Court remanded Fisher to the Court of Appeals with instructions to look closely at the university’s chosen means of achieving its diversity goals. The lower court approved those means, and Thursday the Supreme Court did as well. Kennedy included stern language about the need for universities to provide reasons and data, and lower courts to review them; but the import of the decision echoes Bakke and Grutter—universities know their business better than courts. “Once . . . a university gives ‘a reasoned, principled explanation’ for its decision,” Kennedy wrote, “deference must be given to its conclusions.”
Finally, Fisher argued that, if UT wants more diversity, it should just expand the 10 percent plan. But, Kennedy wrote, “to compel universities to admit students based on class rank alone is in deep tension with the goal of educational diversity as this court’s cases have defined it.”
Properly read, the majority opinion tells lower courts to give significant weight to the opinions of educational administrators. It is an important practical result, because it reduces the burden they must carry to justify a program. And it is precisely this result that Justice Alito targeted in his dissent—a fact-heavy argument that weighs in at 50 pages, two and a half times the length of the majority opinion. The central thread of the dissent is that courts shouldn’t defer at all to educational administrators—and especially not those at UT: “The majority’s willingness to cite UT’s ‘good faith,’” he wrote, “is particularly inappropriate in light of UT’s well-documented absence of good faith.” Alito echoed Fisher’s argument that the University had simply decided it wanted a race-based plan and created one without any facts to back it up. It is again the argument that without numerical goals and precise tracking of racial numbers, an affirmative-action plan can’t be judged at all.
As for deference, Alito regards the university as a cesspool of corruption; he cited, among other evidence, investigative reports that UT had a “clandestine admissions program” that favored the children of “politically connected individuals,” and that officials tried to cover that up. The relevance of that scandal to the Fisher case, however, is, to borrow Kennedy’s word, “elusory,” except to suggest that as a matter of law these are people of thoroughly bad character. Kennedy’s opinion dismissed “the extrarecord materials the dissent relies upon, many of which are tangential to this case at best.”
Fisher v. University of Texas will not end the legal battle over affirmative action in higher education. This fall, the voters will decide roughly which of two directions the post-Scalia court will take; one of those roads leads eventually to the overthrow of all race-conscious programs. But Kennedy’s opinion makes that goal, for the moment, significantly more distant.
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