Bench Memos

Fisher II: SCOTUS Plays Catch-and-Release With Fisher I

This morning the Supreme Court issued its opinion ending Abigail Fisher’s lawsuit against the University of Texas, holding by a 4-3 vote (Justice Kagan was recused) that the university’s race-oriented affirmative action program did not violate the Equal Protection Clause. Justice Kennedy wrote the majority opinion for himself and the Court’s liberals. Justice Alito wrote the principal dissent for the remaining justices, with Justice Thomas writing a short additional dissent only for himself.  

The case concerns a claim under the Equal Protection Clause brought by Abigail Fisher, who asserted that an affirmative action program run by the University of Texas violated her rights under the Fourteenth Amendment because it gave some applicants higher scores based on race while penalizing others. Fisher’s case first reached the Supreme Court during October Term 2012, when the Court ruled that the university’s program was subject to the “demanding burden of strict scrutiny articulated in Grutter [v. Bollinger] and Regents of Univ. of Cal. V. Bakke[.]” The Court’s opinion then, written by Justice Kennedy, vacated a Fifth Circuit decision for failing to apply the correct standard and improperly upholding the program. Many expected the Court to take the same hard line that it took in Fisher I, rigorously evaluating the proffered justifications for UT’s program and holding the state to its burden. But as Justice Alito wrote in his dissent, “Something strange has happened since our prior decision in this case.”

And indeed, something strange did happen: The Court moved the goalposts closer to the University of Austin. Fisher’s counsel had pointed out at oral argument that under strict scrutiny, the burden of proof is on the government entity involved in racial discrimination, so any factual holes in the government’s justification must be construed against the government. But the Court’s opinion hinges its analysis on Fisher’s failure to challenge a race-neutral program, called the Top Ten Percent Plan, that runs alongside UT’s race-conscious program and accounts for nearly three quarters of the incoming students. This, the Court said in the understatement of the week, “complicates this Court’s review”:

In particular, it has led to a record that is almost devoid of information about the students who secured admission to the University through the Plan. The Court thus cannot know how students admitted solely based on their class rank differ in their contribution to diversity from students admitted through holistic review.

Normally, a gap in the record would be solved through a remand for further fact-finding or (at this late stage in the litigation) construed against the government that bears the burden. But the Court goes full-Kennedy in the other direction, explaining that it would have been so gosh-darn hard for UT to get the necessary evidence (even though UT officials destroyed records) and anyway UT was trying its best and anyway the case has dragged on too long. It’s not clear why any of this matters, but the majority found it compelling. (Was the Court announcing a new doctrine of “your case is too old so we’re reversing the burden of proof?” Who knows? Let’s see what the lower courts make of it.)   

Kennedy still can’t shake his concerns about UT, though, so he adds this odd exhortation (citations omitted):

That does not diminish, however, the University’s continuing obligation to satisfy the burden of strict scrutiny in light of changing circumstances. The University engages in periodic reassessment of the constitutionality, and efficacy, of its admissions program. Going forward, that assessment must be undertaken in light of the experience the school has accumulated and the data it has gathered since the adoption of its admissions plan.

As the University examines this data, it should remain mindful that diversity takes many forms. Formalistic racial classifications may sometimes fail to capture diversity in all of its dimensions and, when used in a divisive manner, could undermine the educational benefits the University values. Through regular evaluation of data and consideration of student experience, the University must tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest. The University’s examination of the data it has acquired in the years since petitioner’s application, for these reasons, must proceed with full respect for the constraints imposed by the Equal Protection Clause. The type of data collected, and the manner in which it is considered, will have a significant bearing on how the University must shape its admissions policy to satisfy strict scrutiny in the years to come. Here, however, the Court is necessarily limited to the narrow question before it: whether, drawing all reasonable inferences in her favor, petitioner has shown by a preponderance of the evidence that she was denied equal treatment at the time her application was rejected.

In other words, “Next plaintiff!”

After shifting the burden back to the plaintiff, the majority goes on to declare that the values promoted by the affirmative action program – “the destruction of stereotypes,” “promotion of cross-racial understanding,” “preparation of a student body for an increasingly diverse workforce and society,” and “cultivation of a set of leaders with legitimacy in the eyes of the citizenry” – are sufficiently “concrete and precise” to satisfy strict scrutiny.  These are laudable goals, to be sure, but “concrete” or “precise?” Good grief. Of course, with this setup, the “strict scrutiny” that follows is not so strict.

Justice Thomas’s brief opinion reiterates his view that “a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.” Justice Alito’s dissent is long, but worth reading in its entirety. Much of his opinion is devoted to showing the inconsistencies between the majority opinion, Fisher I, and prior case law, and his searching analysis of the facts, unlike the majority’s, actually deserves the label “strict scrutiny.”

His dissent also points out the selective concern for different racial groups (citations and internal quotations omitted):

While both the majority and the Fifth Circuit rely on UT’s classroom study, they completely ignore its finding that Hispanics are better represented than Asian-Americans in UT classrooms. In fact, they act almost as if Asian-American students do not exist. Only the District Court acknowledged the impact of UT’s policy on Asian-American students. But it brushed aside this impact, concluding—astoundingly—that UT can pick and choose which racial and ethnic groups it would like to favor. According to the District Court, “nothing in Grutter requires a university to give equal preference to every minority group,” and UT is allowed “to exercise its discretion in determining which minority groups should benefit from the consideration of race.”

This reasoning, which the majority implicitly accepts by blessing UT’s reliance on the classroom study, places the Court on the tortuous path of deciding which races to favor. And the Court’s willingness to allow this “discrimination against individuals of Asian descent in UT admissions is particularly troubling, in light of the long history of discrimination against Asian Americans, especially in education. In sum, while the Court repeatedly refers to the preferences as favoring “minorities,” it must be emphasized that the discriminatory policies upheld today operate to exclude Asian-American students, who have not made UT’s list of favored groups.

On the upside, the Court’s opinion doesn’t foreclose further Equal Protection claims against universities for racially discriminatory affirmative action programs. It could even be construed as requesting more. On the downside, the Court gratuitously spiked one plaintiff’s cause of action for all the wrong reasons. I can’t improve on Justice Alito’s summation:

What is not at stake is whether UT or any other university may adopt an admissions plan that results in a student body with a broad representation of students from all racial and ethnic groups. UT previously had a race-neutral plan that it claimed had “effectively compensated for the loss of affirmative action,” and UT could have taken other steps that would have increased the diversity of its admitted students without taking race or ethnic background into account.

What is at stake is whether university administrators may justify systematic racial discrimination simply by asserting that such discrimination is necessary to achieve “the educational benefits of diversity,” without explaining—much less proving—why the discrimination is needed or how the discriminatory plan is well crafted to serve its objectives. Even though UT has never provided any coherent explanation for its asserted need to discriminate on the basis of race, and even though UT’s position relies on a series of unsupported and noxious racial assumptions, the majority concludes that UT has met its heavy burden. This conclusion is remarkable—and remarkably wrong.

Well said. 

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...


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