Bench Memos

The Fisher Case: A Bonanza for Lawyers

If I were so inclined to dedicate my law practice to suing universities over race-discriminatory admissions policies, I’d have popped a champagne cork over the Fisher decision. The court just guaranteed my employment for the next decade. Here’s the key language from the Justice Kennedy’s majority opinion:

Once the University has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation. The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference. Grutter made clear that it is for the courts, not for university administrators, to ensure that “[t]he means chosen to accomplish the [government’s] asserted purpose must be specifically and narrowly framed to accomplish that purpose.” 

. . . 

True, a court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes. But, as the Court said in Grutter, it remains at all times the University’s obligation to demonstrate, and the Judiciary’s obligation to determine, that admissions processes “ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.”

. . . 

Narrow tailoring also requires that the reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity . . . This involves a careful judicial inquiry into whether a university could achieve sufficient diversity  without using racial classifications.

In other words, if a university’s going to use race as a factor, it had better be prepared to endure a searching judicial examination — with a plaintiff’s lawyer on the other side armed with considerable facts showing that race-blind schools can be (and are) quite diverse. How can the use of race be “necessary” when race-blind policies — like Texas’s Top Ten Percent Law (granting admission to state universities to any student who graduates in the top 10% of his high school class) — achieve good results without racial classifications?

Moreover, note the explicit blessing of judicial inquiry. Those of us who’ve challenged university policies across many fronts are used to courts deferring again and again to “academic” judgments, reluctant to second-guess the guardians of the academy. Yet this opinion represents a demand, a requirement, that courts second-guess university admissions policies.

Given the deceptive realities of modern affirmative action programs, this second-guessing is likely not to end well for many universities. If the legal will exists (and that’s a key point), academic racial classifications may well end not with the the big bang of a Supreme Court opinion but instead with an exhausted wimper, as the university community, besieged by lawsuits and unable to publicly justify its ongoing, explicit racial classifications, finally ends a decades-long, divisive social experiment and retreats behind the safe harbor of ten percent laws and other methods that rely on objective measures of academic success.

The message to frustrated academic all-stars excluded from the public university of their choice? Sue. The Supreme Court wants you to.

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