Many legal experts were surprised in June of 2013 when the U.S Supreme Court handed down its long-awaited decision in the University of Texas affirmative action case, Fisher v. Texas. The mere fact that the Court had taken up the case when it could easily have declared it moot indicated to many that at least five Justices were prepared to restrict dramatically the degree to which public institutions could use racial classifications to further what they deemed “compelling” pedagogical interests.
(The mootness option was readily available to the Court because Abigail Fisher, the plaintiff who claimed to have been the victim of racial discrimination in the admission to UT’s undergraduate program, had already enrolled in another university and would graduate before the case was decided, thus rendering her ineligible for UT undergraduate admission even with a favorable Court ruling).
Virtually all assumed that the Court would be modifying, if not entirely overruling, the 2003 case of Grutter v. Bolllinger, which gave to state institutions great leeway in determining both the nature of the educational interest they believed justified race-conscious admissions, and the means appropriate to furthering that interest. And it was universally assumed that it would be a 5-3 or 4-4 decision with Anthony Kennedy the key swing vote (Elena Kagan had recused herself because of prior involvement in the case as Solicitor General).
It was a mystery then when the decision came down — supported by an unlikely 7-1 majority — reaffirming Grutter as operative law and merely remanding the case to the appeals court with instruction that it not defer so readily to UT’s claim that its race-based “holistic” program was narrowly tailored to achieving its diversity goal. The University’s judgment about the compelling importance of racial diversity was not challenged, but the burden of proof was shifted to UT to show that no practicable alternative existed to achieve the racial diversity it sought that did not use overt racial classifications. “Show us there’s no race-neutral way to achieve the racial diversity you want,” the court said in effect, “and if you do, all is OK as far as the Constitution is concerned.” That seven Justices could a3gree on this formula suggested just how moderate the decision was and how little of a threat it posed to the pro-affirmative action Grutter decision so eagerly embraced by the nation’s leading universities and professional schools.
On remand, the appeals court voted, in a 2-1 decision, to accept UT’s claim that its holistic plan, which accorded admissions boosts to “underrepresented minorities,” was indeed narrowly tailored and fit tightly with the diversity-enhancement goal it was intended to achieve. While there was a sharp dissent by judge Emilio Garza, who argued that the university had not clearly defined or explained exactly what it meant by its main goal of enrolling a “critical mass” of minority students, some knowledgeable observers thought the case was now settled and that on the affirmative action front in higher education business would go on as usual.
But attorneys for Fisher appealed the decision to the U.S. Supreme Court, which in a second mystery move decided to accept the case (grant certiorari as the lawyers say). What was going on here? Were the four Justices needed to grant cert. for a second round of Fisher proceedings primarily concerned with reigning in to some degree what some saw as an overly permissive interpretation of a university’s obligation to seek non-racial means to enhance racial diversity? Or were those who granted cert. hoping for a five-vote majority to reign in Grutter more substantially — or even overrule it and return to the idea of color-blind justice that had so motivated civil rights advocates through the first two-thirds of the last century? Something seemed to be going on here that even sophisticated court watchers found baffling. What were the conservative justices, who must have been the ones to vote to hear Abigail Fisher’s appeal for the second time, really up to?
A Mystery Solved
The mystery may have been solved by legal journalist Joan Biskupic, who in researching a book on Justice Sonia Sotomayor learned that when Fisher I was first taken up by the Court, Anthony Kennedy and the four conservative Justices were all on board for a major revision or overruling of Grutter. Racial preference policies were to be subject to real “strict scrutiny,” and the “diversity-enhancement” rationale itself might possibly have been called into question as a truly “compelling state interest” that can override the color-blind interpretation of the 14th Amendment’s Equal Protection Clause.
Biskupic’s sources claimed Anthony Kennedy was preparing a draft for a clear retreat from Grutter, but he was persuaded to change his mind by Justice Breyer who explained the extreme opposition to such a move by Justice Sotomayor, the court’s first Latino Justice. Sotomayor was preparing a sharply worded draft accusing the anti-affirmative action Justices of insensitivity on racial matters, and the effect of such a clash of opinions, Breyer told Kennedy, would have polarizing consequences both inside and outside the Court.
Justice Breyer Steps in
Breyer was apparently able to convince both Anthony Kennedy and Chief Justice John Roberts to forego any dramatic change in the Grutter framework substituting instead what seemed like a minor alteration in the obligation of universities to justify more rigorously their race-conscious recruitment methods. Any major change in Grutter would have to await another day.
The result of the shift was to bring on board both Breyer and Sotomayor in the first Fisher ruling(Ruth Bader Ginsburg was the lone dissenter, who believed that UT had already done more than enough to justify its race-conscious programs). And from the standpoint of those Justices who would have liked a more substantial move away from Grutter, the incremental move was seen as one small step in a process that might include more radical changes in the future.
Two important things changed from the time Fisher Iwas decided to the Court’s more recent decision to hear Abigail Fisher’s appeal for a second time. First, Justice Sotomayor issued a blistering dissent in the 2014 case of Schuette v. BAMN, a case on the constitutionality of Michigan’s ban on race-based affirmative action programs in state institutions. Her opinion contained some of the kind of impassioned rhetoric — accusing the Court majority of insensitivity to racial discrimination and injustice — that allegedly was contained in her original, preliminary draft of a Fisher dissent.
Nothing particularly polarizing came of Sotomayor’s Schuette dissent, however, which some saw as out of place in the case at hand and not particularly resonant with either general public opinion in America or the opinion of the Court’s centrists. The polarization issue seemed neutralized, and one suspects that not only the three right-most Justices were more emboldened to revisit the Fisher case — i.e. Scalia, Thomas, and Alito — but very likely both Anthony Kennedy and the Chief Justice John Roberts.
Kennedy and Roberts Less Constrained
The second thing that changed from 2013 were the two dramatic victories for the Left handed down by the Court in 2015 in the gay marriage case (Obergefell v. Hodges) and the case interpreting Congress’s intention regarding the Obamacare law (King v. Burwell). John Roberts issued the majority opinion in the Obamacare case, while Justice Kennedy wrote the majority opinion in the gay marriage case. The Kennedy and Roberts performance in these cases were seen as a great betrayal by many political conservatives, but were warmly greeted by the Left and seen as an indication of the flexibility, fairness, and centrist leanings of both Kennedy and Roberts. The cases established for both Justices a certain level of respect from the left-leaning law school elite, whose opinions historically have often counted a great deal in the minds of the swing Justices and centrists on the Court.
Kennedy and Roberts almost certainly feel less constrained today to speak their minds on race-based preferences in academia than they did in 2013 before Obergefell and Burwell enhanced their bona fides (or at least diminished hostility towards them) on the part of the myriads of left-of-center court watchers and legal commentators. Any decision they might write today overruling Grutter or narrowing substantially the permissible range of racial preference policies is likely to encounter much less hostility and produce much less polarization than might have been the case even a year ago or when Fisher I was decided. This of course is a source of great encouragement for those of us who hope that the Court will overturn Grutter and reaffirm the simple truth that state institutions are not permitted to favor or disfavor people on the basis of their race, ethnicity, or religion.
Asians Get in the Game
There is a third factor that may come into play in Fisher II that I have written about in an earlier Minding-the-Campus article — the rise of an aggressive Asian legal challenge to racial preferences in college admissions. No longer quiescent or content to play simply the non-complaining “model minority” role, many Asian-American groups in recent years have come together and taken a page from the history of the NAACP to pursue an aggressive litigation strategy challenging racial preferences on 14th Amendment grounds. This strategy is clearly on display in Fisher II with an outstanding legal brief filed by two Asian-American groups, the Asian American Legal Foundation and the Asian American Coalition for Education, the latter an umbrella group representing 117 separate Asian-American organizations.
The AALF/AACE brief urges the Supreme Court not merely to modify Grutter‘s diversity-enhancement justification for racial preferences, but to overrule Grutter entirely and abandon “diversity” as a legitimate criterion for discriminating based on race. The brief is a model of legal craftsmanship, informed scholarship, and moral punch that announces to the Justices — loud and clear — that Asians will no longer take the widespread discrimination against them with indifference or passivity. The Asians are not going to keep quiet anymore when the universities establish the same kind of ceiling quotas against them that they imposed on the Jews in an earlier period of American history.
The constitutional question at hand, the brief began, is “whether Grutter v. Bollinger (2003), which upheld the use of racial preferences in higher education admissions for the non-remedial, and amorphous purpose of ‘diversity,’ should be overruled as fundamentally incompatible with the Equal Protection Clause of the Fourteenth Amendment and the equality principle of the Declaration of Independence?” The AALF/AACE brief answers this question with a resounding “yes” and backs up its claim not only with a reaffirmation of the color-blind interpretation of the Equal Protection Clause, but with extensive references to how Asian Americans have so often been victims of discrimination when this principle was ignored.
“Asian Americans, a minority group repeatedly victimized by discrimination, are the group most harmed by the University of Texas admission program,” the brief begins. It continues: “UT’s use of race deprives Asian Americans of the right to be judged as individuals and not by the color of their skin.” “For much of America’s history, race-based governmental programs have been used to oppress Asian Americans.” “Today, supposedly benign racial balancing and diversity policies insidiously discriminate against Asian American students nationwide.” “[The Court] should re-establish the bright-line rule reserving use of race for remedial settings.”
The brief ends with two concluding sentences that cut to the quick: “For the foregoing reasons, the Court should find the UT admission program to be unconstitutional. This Court should also revisit its holding in Grutter, to make clear that outside of a constitutionally-permissible remedy to prior discrimination, race may not be considered in college admissions.”
Asian Americans have come of age. In the beginning of October of this year the London-based Economist ran an article titled “Asians Americans: The Model Minority is Losing Patience.” Below the title, in a summary sentence, the article explains: “Asian-Americans are the United States’ most successful minority, but they are complaining ever more vigorously about discrimination, especially in academia.” As the Economist writers report, after decades of relative quiescence, Asian Americans have found their voice of protest. Like the Blacks and the Jews before them, they are no longer willing to accept in silence the overt discrimination against them. In the long history of American protest going back to the time of the American Revolution they are proclaiming to the world “Don’t Tread on Me!”
Whether this new assertiveness will have any effect on the outcome of Fisher II is impossible to say, but it just might provide the added push needed for five members of the U.S. Supreme Court to reinstitute the noble principle of color-blind justice so magnificently articulated by the elder Justice Harlan in the Plessy case. The oral argument in Fisher II, scheduled for the end of this year, is going to be something to follow closely.