The Court’s decision in Fisher v. Texas has been long-anticipated: it was one of the first cases argued this term, but was handed down in the last week of the term. That is the hallmark of either a contentious back-and-forth between opinion and dissent, the switch of a decisive fifth vote, or a carefully-negotiated majority opinion that hews a delicate legal line. Today’s decision was the latter.
Although this case is being reported as a punt or as splitting the baby, it actually has the potential to narrow Grutter v. Bollinger significantly. Even more interestingly, Justice Kennedy was able to marshal a 7-1 majority for his opinion, including the vote of Justice Sotomayor, one of the Court’s most vocal defenders of racial preferences.
The Fisher decision builds on Justice Kennedy’s own dissent in Grutter, which took the Court to task with its dishonest application of the strict scrutiny standard. The Fifth Circuit, reversed today, can hardly be held solely responsible for the deference it afforded the university when the Grutter court signaled that it was gutting that standard by deferring to the good faith of the university on each aspect of the test.
In fact, today’s decision does leave in place one contentious aspect of Grutter: the deference to a university’s own judgment about whether diversity is essential to its educational mission and therefore a compelling government interest. Justices Scalia and Thomas both concurred to explain that they would not defer on this point, and the majority opinion clarifies that it was not asked to revisit that aspect of Grutter, so its adoption of that point adds only minor weight to Grutter itself and leaves the door open (at least a crack) for future challenges.
The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If “‘a nonracial approach . . . could promote the substantial interest about as well and at tolerable administrative expense,’” Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 280, n. 6 (1986) (quoting Greenawalt, Judicial Scrutiny of “Benign” Racial Preference in Law School Admissions, 75 Colum. L. Rev. 559, 578–579 (1975)), then the university may not consider race. A plaintiff, of course, bears the burden of placing the validity of a university’s adoption of an affirmative action plan in issue. But strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.
Now it is possible that other courts will downplay this language and allow racial preferences to continue, perhaps with the only change being a higher bar of administrative costs imposed on schools to amass sufficient statistics supporting their chosen policy. But I hope this passage will prove significant, particularly its statement that non-racial policies need not be identically effective at creating racial diversity, but only do it “about as well”, and in its admission that this could involve additional administrative expense compared to directly using race.
The citation of the Wygant case is interesting as well, since that case actually called for “particularly intense scrutiny” at the narrow tailoring prong. Far from the watered-down version of scrutiny in Grutter, the Court here could be seen as applying a higher-than-normal level of strict scrutiny. After all, Grutter stated that narrow tailoring “does not require exhaustion of every conceivable race-neutral alternative” while Fisher requires a court to be satisfied that “no workable race-neutral alternatives would produce the educational benefits of diversity.” (emphasis mine)
One thing this case will have in common with other compromise decisions is that the outcome isn’t particularly intellectually satisfying. Those in search of a truly consistent approach are directed to Justice Thomas’s concurrence which rejects (in my opinion, devastatingly) the treatment of racial diversity as a compelling interest altogether, categorically ruling out the use of race in university admissions. He points out how each of the university’s arguments in favor of racial preferences now for minorities was once employed (and rejected by the courts) in the cause of school segregation. Dismissing the notion “that it is possible to tell when discrimination helps, rather than hurts, racial minorities,” Justice Thomas invoked the arguments of the plaintiffs in Brown v. Board of Education: “[N]o State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Full stop.
I also appreciated Justice Ginsburg’s frank acknowledgement that the “race-neutral” alternatives to achieving diversity in fact are generally little more than proxies for an impermissible inquiry that encourage dishonesty in the admissions process. She criticized the “kind of legal mind [that] could conclude that an admissions plan specifically designed to produce racial diversity is not race conscious,” and she reiterated her preference for a candid acknowledgement of a university’s race consciousness over attempts to dissemble and camouflage it.
Another unfortunate feature of decisions like this one that walk such a fine line is that they don’t often provide terribly clear or easily applicable guidance going forward. The incredible cost in time and money of this litigation not only is still continuing for the University of Texas and Abigail Fisher, but also will likely be repeated on a case-by-case basis across the country as each university attempts to find its own magic formula for consideration of race that the Court will accept. Of course, universities still have one option that is not only straightforward and above constitutional scrutiny but also, according to recent polling, favored by a significant majority of Americans: leaving race out of it altogether.