The Supreme Court holds oral arguments tomorrow in Fisher v. Texas, possibly the most consequential case in years involving affirmative action. Many of us critics of racial preferences are optimistic that Justice Anthony Kennedy, the likely swing vote, will agree to modify if not overrule Justice O’Connor’s ruling in the 2003 Grutter case, which, in the name of diversity, allowed state-run colleges and universities to grant racial preferences.
Part of the reason for our optimism derives from the fact that the conservative justices decided to take this case in the first place. Abigail Fisher, who was denied entry to the University of Texas, wound up matriculating at an out-of-state institution and no longer seeks Texas admission. The Court could have declared the issue moot (as a majority of the Court did in a parallel affirmative action case in 1974 regarding preferential admissions to the University of Washington law school) and refused to hear it. It could have refused to hear the case without further explanation.
The fact that the four conservative justices agreed to take the case indicates to many court watchers both that a) they intend to issue a decision that will reverberate well beyond Abigail Fisher and Texas, and that b) they probably have Anthony Kennedy on board as a fifth vote to make some serious modifications in, if not the outright overruling of, the Grutter standard.
Are Alternate Means Available?
Kennedy’s position on racial preferences in state-run institutions of higher learning might be described as somewhere between those, like Justices Scalia and Thomas, who believe in a strict color-blind interpretation of the constitution, and those, like Justices Ginsberg and Breyer, who avidly support the constitutionality of racial preferences. But Kennedy is considerably closer to the Scalia-Thomas wing. Unlike the left-of-center justices, Kennedy believes that racial classifications and the distribution of burdens and benefits on the basis of such classifications are constitutionally suspect and only justified when a truly compelling state interest is at stake. The Fourteenth Amendment’s Equal Protection Clause, he believes, casts most racial preference policies in doubt since the losers in the race-classification game are denied the law’s equal protection. Even when there is a compelling interest at stake, Kennedy thinks race classifications are permissible only when alternative means are unavailable.
His opinion in the 2007 Seattle school desegregation case is instructive (Parents Involved in Community Schools v. Seattle School District No. 1). The case involved the assignment of public school students to various schools in a Seattle school district on the basis of their stated racial category for the purpose of attaining greater racial balance and avoiding excessive racial concentration in any one school. The four most conservative justices voted to invalidate the race-based assignment program as a clear violation of the Equal Protection Clause, with Chief Justice Roberts authoring the memorable lines "the way to stop discrimination on the basis of race is to stop discrimination on the basis of race." Kennedy’s position was less categorical. He agreed with the dissenting four justices (Breyer, Souter, Ginsburg, Stevens) that under certain circumstances racial diversity might be considered a genuinely compelling state interest legitimating some form of race-conscious policies, but argued that greater racial balance in the public schools was possible without requiring individual students to classify themselves by race.
‘A Pernicious Government Action’
The latter was seen as an inherently divisive, demeaning, and constitutionally suspect procedure. "The allocation of government burdens and benefits, contentious under any circumstances, is even more divisive," he wrote, "when allocations are made on the basis of individual racial classifications." "Reduction of an individual to an assigned racial identity for differential treatment is among the most pernicious actions our government can undertake." Kennedy suggested that there were other ways to achieve greater racial balance in the public schools that did not require the constitutionally dubious practice of requiring incoming students to categorize themselves by race. Such ways might include drawing school-zone boundaries to encompass demographically diverse populations, and locating new school buildings in areas that could draw from a diverse surrounding population.
Kennedy’s distaste for race classification was also apparent in Metro Broadcasting Inc. v. the F.C.C., a 1990 case dealing with the preferential issuance of radio and TV licenses to minority owned firms. In a dissenting opinion joined by Justice Scalia, Kennedy criticized the Court’s majority for abandoning the strict scrutiny standard of judicial review in race-preference cases in favor of a much looser standard of judicial oversight that accepts race classifications as long as they are considered "benign." Alluding to the infamous Plessy decision, he wrote, "I regret that after a century of judicial opinions we interpret the Constitution to do no more than move us from ‘separate but equal’ to ‘unequal but benign’."
He quoted in this context from a 1935 Nazi law to suggest his repugnance over racial classification, and showed considerable sensitivity both for those disadvantaged by and supposedly helped by such policies. On the latter issue he wrote that "special preferences … can foster the view that members of the favored groups are inherently less able to compete on their own."
Kennedy’s Vague Dissent
The case closest to the present Fisher case is obviously Grutter v. Bollinger, where Kennedy’s vague dissent offers some hope for those who wish that he does not join the four conservative justices. Kennedy reaffirmed Justice Powell’s holding in Bakke that race could be used, along with many other criteria, as a "plus-factor" to enhance viewpoint diversity in the classroom. His objection seemed to be mainly to the degree of preferential treatment involved, small "plus-factoring" being permissible, larger boosts being constitutionally suspect. "There is no constitutional objection," he wrote, "to the goal of considering race as one modest factor among many others to achieve diversity, but an educational institution must ensure, through sufficient procedures, that each applicant receives individual consideration and that race does not become a predominant factor in the admissions decisionmaking." If Kennedy abides by this dictum in the Fisher case, he is unlikely to join the four conservative justices in a sweeping repudiation of Grutter or Bakke.
But champions of the color-blind ideal have at least three reasons to believe that Justice Kennedy might take a less indulgent view of race preference policies. First, his small-but-not-great standard of permissible racial plus-factoring makes no sense even on its own terms. If the degree of plus-factoring accorded to black and Hispanic applicants is small, few additional "underrepresented minorities" will be admitted to competitive institutions who otherwise would not have been admitted. Giving preference only in a toss-up or near toss-up situation obviously will not increase greatly the number of those from sub-performing groups admitted to or enrolling in a highly competitive university or professional school. And if that is the case, it is hard to see how such a small addition to a school’s racial demographic can be construed as a truly compelling state interest, one of such great magnitude that it can override the constitutional imperative not to discriminate on account of race. Minor diversity-enhancement does not a compelling state interest make.
The second reason for optimism is the unusually spirited opinion written by Emilio Garza, one of the lower court judges in the Fisher case. Garza, a native of San Antonio and a University of Texas Law School graduate, reluctantly concluded that Texas’s racial preference program comported with the Grutter holding and thus had to be upheld by the lower court. But Grutter, Garza said, was inconsistent with other Supreme Court decisions and violated fundamental principles of Equal Protection jurisprudence. "The Constitution prohibits all forms of government sponsored racial discrimination," he wrote in a long opinion that amounted to a detailed brief to overturn Grutter. He argued that with Grutter the Court supported “ruinous behavior” and racial division, and pleaded for a “return to constitutional first principles." Justice Kennedy will consider his plea seriously.
Is the Obamacare Decision an Omen?
The third reason for optimism has to do with a combination of what might be called "affirmative action fatigue" — the sense that racial preferences, sold 40 years ago as a temporary measure, have not only outlasted any usefulness they may have had but have caused palpable harm. The Stuart Taylor Jr.-Richard Sander brief lays out the empirical case for many of these harms, documenting the huge proportion of black and Hispanic students who abandon science and engineering majors because the prerequisites for the STEM subjects are too high, and the pace of instruction are too rapid, for their individual needs. The brief, along with others, showcases that affirmative action policies do much harm and can hardly be considered benign in their effect, regardless of their intention.
There is one other optimistic conjecture which seems to be wholly mine. It came as a mystery to many of us when Chief Justice Roberts went out of his way and did so much "legal stretching" to find Obamacare constitutionally permissible despite the objections of the four other Republican court appointees including Justice Kennedy. One possibility is that Roberts may have been thinking ahead to this Fall’s term and the Fisher case. If he thought he had Kennedy on board for a major modification of Grutter and Bakke, he might have used the Obamacare case to shore up the Court’s public support.
Is it anything like a sure thing that a 5-vote majority will overrule Grutter? No, but it is a definite possibility, and it all hinges on the decision of one man.