Fisher v. Texas and the Future of Affirmative Action

The Supreme Court’s decision to hear the case of Fisher v. Texas is likely to have important implications for the future of affirmative action in higher education. In my view, it is highly likely that the five conservative justices will vote to strike down the University of Texas affirmative action program. On the other hand, I doubt there will be five justices willing to overrule Grutter v. Bollinger entirely, and conclude that “diversity” is not a “compelling state interest” that can potentially justify the use of racial classifications.

Therefore, the Court is most likely to strike down the Texas program because it is not “narrowly tailored” to its supposed objective of promoting diversity. Justice Sandra Day O’Connor’s opinion in Grutter contains a serious internal contradiction between its insistence that affirmative action programs, like all racial classifications, are subject to strict judicial scrutiny and its willingness to defer to the judgment of university administrators. Justice Anthony Kennedy, the key swing voter on today’s court, dissented in Grutter. I’m betting that he will now resolve that contradiction in favor of nondeferential strict scrutiny. He and the other majority justices are likely to take a close look at what it really means to have a “critical mass” of students for diversity purposes, and why the program covers only a few historically disadvantaged groups, while ignoring many others that could contribute just as much to diversity and are at least equally lacking in “critical mass” representation at the University of Texas.

The net result will be that diversity-based affirmative action will still be permissible in theory, but extremely hard for public universities to implement in practice. Schools will find it much more difficult to craft a program that is narrowly tailored enough to pass judicial scrutiny.

All of this highlights the internal contradictions of the diversity rationale for affirmative action, which was retrofitted onto a set of programs that were originally intended to provide compensatory justice for groups that suffered severe historic discrimination in American society. The current design of affirmative action programs makes little sense under a diversity rationale. Why give preferences to American-born blacks and Hispanics, but not to Swedish and Russian immigrants, Utah Mormons, or Malaysians? All of the latter add at least as much to viewpoint diversity as the former set of groups, and don’t have a “critical mass” on most American college campuses. If applied consistently, the diversity rationale can even justify preferences for white males at historically black schools that have only a few white students.

The Texas program and others like it are much more understandable as attempts at compensatory justice. Viewed in this way, it makes perfect sense to include African-Americans (who suffered massive state-sponsored discrimination in the US), while excluding Russians and Swedes (who didn’t). But university administrators don’t want to say that that is the real purpose, because various earlier Supreme Court decisions have held that attempts to alleviate societal discrimination cannot justify the use of racial preferences. As I have noted in the past, I think the compensatory justice rationale for affirmative action is much stronger than “diversity.” In Fisher, the shortcomings and contradictions of the diversity rationale are likely to get a thorough airing.

UPDATE: I previously blogged about the issues raised by Fisher v. Texas here and here. Co-blogger David Bernstein commented in this post – where he pointed out that Fisher is the first major affirmative action case to reach the Supreme Court where the primary beneficiaries are Hispanics and Asian-Americans are among the primary losers. This is a departure from the traditional black-white paradigm in which these cases tend to be framed.

UPDATE #2: I have made a few stylistic and organizational changes to this post.

UPDATE #3: It’s worth emphasizing that Justice Kennedy’s dissent in Grutter explicitly accepted the idea that diversity can be a “compelling state interest” justifying racial classifications, but also castigated Justice O’Connor’s majority opinion for its excessive deference to the judgment of university administrators. He called the majority’s analysis of the evidence “nothing short of perfunctory” and criticized it for failing to conduct a “strict review” of the university’s use of racial preferences. It’s a fairly safe bet that the Fisher majority opinion will look a lot like Kennedy’s Grutter dissent, since he is now the key swing voter.

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