In the affirmative-action case decided on Thursday by the U.S. Supreme Court, Fisher v. University of Texas at Austin, Justice Anthony Kennedy cast the decisive vote that saved UT’s race-conscious admissions program from the constitutional scrap heap. It was a stunning development, because during his 27 years on the Court, Justice Kennedy has been a vocal skeptic, if not opponent, of race-based preferences. In a 2003 dissent, he memorably wrote that “preferment by race, when resorted to by the State, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality.” At that time he excoriated the majority for “refus{ing} to be faithful to the settled principle of strict review designed to reflect these concerns.” Yesterday he penned a majority opinion upon which he might have heaped scorn thirteen years ago. Not since Chief Justice Roberts cast the decisive fifth vote to save Obamacare has a member of the high court so surprised observers with an apparent change of convictions. Why Kennedy changed his mind is anyone’s guess. Far more important are the decision’s constitutional implications.
The Fisher case, which has now come before the Supreme Court twice, began in 2008, when Abigail Fisher, a white high school student from Sugarland, Texas, was denied admission to UT Austin. Admission to the University occurs through two parallel processes. The first is race-neutral. Under the state of Texas’s Top Ten Percent Law, students graduating in the top 10 percent of qualified Texas high schools are guaranteed admission to any public college in the state. From the outset, the measure appreciably increased racial diversity at UT Austin without rendering race a factor in admissions.
However, this increase was not enough for University administrators, who concluded that UT Austin lacked a “critical mass” of minority students. Enter the second process: UT Austin’s “holistic-review” admissions program. Taking its cue from two 2003 Supreme Court decisions, UT Austin established an admissions process that takes into account the race and ethnicity of applicants. The first case, Grutter v. Bollinger, held that universities may treat race as one of several “plus factors” in the admissions process. The second, Gratz v. Bollinger, prohibited admissions committees from awarding a fixed number of points to applicants solely on the basis of race. Taken together, the rulings meant departments at public universities could treat race as a positive variable but not as a positive number.
Abigail Fisher launched a federal challenge to the constitutionality of UT’s admissions program on the ground that its use of race violated the Equal Protection Clause of the Fourteenth Amendment, which provides that no State shall “deny to any person . . . the equal protection of the laws.” The Fifth Circuit Court of Appeals denied her claim in granting summary judgment to the University, reasoning that Grutter required that the court afford a high degree of deference to public universities in defining their interest in diversity and in developing their admissions policies accordingly.
Fisher appealed the decision to the Supreme Court and in 2013, the Court decided unanimously in 2013 to remand the case to the Fifth Circuit for reconsideration. According to the high court, the Fifth Circuit had been too deferential to the university: the use of racial classifications by a public institution demanded nothing less the highest standard of review, strict scrutiny. Under this standard, UT would have to prove that the means it employed to foster diversity in the student body were narrowly tailored to further a compelling government interest.
When the Fifth Circuit found for the University a second time, Fisher again appealed to the Supreme Court. This time, both the University and Fisher changed their arguments. In Fisher I, UT had argued that the race-based component of its admissions program was necessary to ensure diversity among the minority students it admitted. UT Austin conceded that the Top Ten Percent Law had increased minority enrollment but said that most of those students came from predominantly African-American or Latino schools in low-income communities. Using race as a factor in the “Personal Achievement Index” would ensure that UT also admitted “African-American child[ren] of successful professionals in Dallas.” But in Fisher II, the University changed its tune and distanced itself from an argument that smacked of racial stereotyping. In essence, the University now argued, the “holistic” admissions process was simply a redoubling of its commitment to racial and ethnic diversity in the student body.
Fisher’s new argument emphasized the perversity of UT’s claims regarding the need to admit the “right kind” of minority students. She issued no objection to the race-neutral Top Ten Percent Law. In fact, top ten percenters filled more than three-quarters of the slots in the newly admitted class at UT Austin. It was the “holistic” admissions process she found constitutionally objectionable because from a practical standpoint it converted her race into a “minus factor” in the admissions process. If UT Austin were to pursue this approach to admissions, it would have to show that its racial preferences passed judicial muster.
This brings us to the genuinely mystifying aspect of Justice Kennedy’s ruling. Yesterday, the very justice who chastised his colleagues 13 years ago in Grutter for “refus{ing} to be faithful to the settled principle of strict review” left the University of Texas’s admissions program standing after only a cursory glimpse at an incomplete record. The majority in Fisher simply took the University of Texas at its word when it assured the court that its race-conscious admissions program had been narrowly tailored to further a compelling government interest. The same man who in 2003 derided the concept of critical mass as “a delusion used . . . to mask [an] attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas” in Grutter never demanded that the University of Texas explain what racial “critical mass” is or how it is quantified.
In many ways, the tortured history of the Fisher case only underscores Justice Lewis Powell’s concern in the landmark 1978 case of Regents of the University of California v. Bakke that “preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth.” Indeed, in a scorching dissenting opinion, Justice Alito yesterday called the University of Texas to task for doing precisely this, noting that UT’s “insulting stereotype [about top 10% minority applicants] is not supported by the record. African-American and Hispanic students admitted under the Top Ten Percent plan receive higher college grades than the African-American and Hispanic students admitted under the race-conscious program.”
Fisher further underscores the degree to which the entire system of racial preferences demands a collective suspension of disbelief—it requires that we cross the fine line between statistical trend and racial stereotype by assuming that members of certain minority groups share attributes beyond genetic phenotype. Instead of conceiving of all individuals as equals before the law, racial preferences treat all individuals as equals only among members of the same race. According to the logic here, one African-American’s life experiences will be more or less the same as another African-American’s, one Asian-America’s life experiences will be more or less the same as another’s, one white’s life experiences will be more or less the same as another’s, etc. The notion of “critical mass” is no less invidious because while its purported aim is to ensure that minority students do not feel like solitary spokespersons for their race, the very preferences on which “critical mass” is predicated assume that minority students have a unique burden that others do not: as spokespersons for their race.
Notwithstanding the majority’s willful elision of the law and the facts, there may be less to Fisher as a precedent than meets the eye. Justice Kennedy’s insistence that the University program under review “is sui generis” suggests that the ruling may be of little to no precedential value—what lawyers call a “one ticket, one trip” sort of case. In the end, The ruling may have been a judicial accommodation meant to preserve the status quo on a wrenching political issue under extraordinary political circumstances—with the unfilled chair of Justice Scalia and Justice Kagan recusing herself from the proceedings because of her involvement in the matter as Solicitor General.
This much is certain: the Fisher case will re-energized public debate on affirmative action. Yesterday’s ruling demonstrates that the debate is far from over in both the political and legal spheres, and may play a role in the upcoming presidential election.
