The Disappointing Non-Decision in Fisher

Justice Anthony Kennedy, writing for a 7-1 majority (Justice Kagan recused herself), disappointed both left and right today with his opinion for the Court in Fisher v. Texas, vacating the Fifth Circuit’s decision and remanding it “[b]ecause the Fifth Circuit did not hold the University to the demanding burden of strict scrutiny” required, he said, by Bakke and Grutter. (All opinions can be found here.)

The effect will be to leave universities wondering how many imaginary hoops they must pretend to jump through to prove they have exhausted the possibilities of providing “diversity” without discrimination, how far they must go to disguise the “outright racial balancing” at the heart of their “diversity”-justified racial preferences.

Indeed, it is difficult to disagree with the lament of Justice Ginsburg’s lone dissent that the University of Texas “is candid about what it is endeavoring to do: It seeks to achieve student-body diversity through an admissions policy patterned after the Harvard plan referenced as exemplary in Justice Powell’s opinion” in Bakke…. “And, like so many educational institutions across the Nation, the University has taken care to follow the model approved by the Court” in Grutter.

In the only Fisher opinion that is worth reading by anyone not a university lawyer, Justice Thomas’s concurrence in effect agrees with Justice Ginsburg’s complaint. That’s why he has written a powerful, tour de force explanation of why he believes Grutter should have been overruled.

“Attaining diversity for its own sake is a nonstarter,” he noted. It “can only be the means by which the University obtains educational benefits; it cannot be an end pursued for its own sake. Therefore, the educational benefits allegedly produced by diversity must rise to the level of a compelling state interest in order for the program to survive strict scrutiny.”

According to Thomas, they do not. “Unfortunately for the University, the educational benefits flowing from student body diversity — assuming they exist — hardly qualify as a compelling state interest.” In fact, he quotes the “mismatch” evidence from the brief by Rick Sander and Stuart Taylor, from a terrific article by Stephan and Abigail Thernstrom criticizing Derek Bok’s The Shape of The River, and others to document the actual harm done by admitting minority students with lower qualifications than their peers.

The most striking arguments in Thomas’s opinion — arguments that can be confidently predicted to make liberals apoplectic — are his recitation of the compelling demands of the plaintiffs in Brown v. Board of Education for colorblind equality and the chapter and verse he provides of the degree to which today’s arguments for “diversity”-justified discrimination resemble yesterday’s arguments for segregation — that segregation would preserve the peace and produce better educational outcomes for both blacks and whites.

Citing the case of Prince Edward County, Virginia, which closed its public schools from 1959-1964 rather than desegregate, Thomas notes that “the Constitution prohibits public schools from discriminating based on race, even if discrimination is necessary to the schools’ survival.” If a school’s survival is not a compelling enough interest to justify discrimination, the supposed educational benefits of “diversity” hardly are.

Thomas’s recounting of the arguments for segregation rejected by the Court in a number of cases, and their resemblance to “diversity” arguments today, will no doubt infuriate many. Good. Read Thomas; I can’t recommend his opinion highly enough.

To look at the half of the glass that is full (or at least less empty), nothing was lost today — except for the opportunity to drive a stake through the heart of racial discrimination. And optimists (or perhaps even realists) will argue that something of value was won. A decision upholding racial preferences was overturned. The Court said in effect that when we said “strict scrutiny” in Grutter we really meant it, appearances and the result in that case to the contrary. Now it will be even harder for universities to justify their discrimination.

But I suspect they will be up to the task, or at least give it the old college try.

John S. Rosenberg

John S. Rosenberg

John Rosenberg blogs at Discriminations.

One thought on “The Disappointing Non-Decision in Fisher”

  1. In my view, the worst aspect of remanding the case is that by the time Texas is done trying to snow the Fifth Circuit with put-up research that racial preferences produce wondrous results that can’t be had in any other way, the composition of the Supreme Court will have changed and there will be five votes to turn a blind eye to the unconstitutional and educationally harmful policy of putting students into categories based on their ancestry and then treating some groups more favorably than others.

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