Preliminary Thoughts on Fisher v. University of Texas

Today’s Supreme Court decision in Fisher v. University of Texas is a significant victory for opponents of affirmative action in higher education. Formally, the 7-1 ruling written by Justice Anthony Kennedy only remands the case to the court of appeals for consideration under the “strict scrutiny” standard, which requires the government to show that racial classifications are “narrowly tailored” to the achievement of a “compelling state interest.” But it also makes it much more difficult for state universities to prove that affirmative action plans meet that standard. To understand why, we need to compare today’s ruling to the 2003 case of Grutter v. Bollinger, the leading previous Supreme Court decision on the subject.

Grutter ruled that affirmative action programs in higher education have to meet strict scrutiny, but also concluded that “diversity” is a compelling state interest. Most importantly, it held that in considering whether an affirmative action program meets the narrow-tailoring requiring, courts should give universities’ judgment about the amount of racial preferences needed to promote diversity “a degree of deference.” Such questions, the Court then said, are “complex educational judgments in an area that lies primarily within the expertise of the university.” By contrast, today’s majority opinion is much less deferential:

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. [emphasis added]

The Court therefore vacated the Fifth Circuit opinion, which gave the University of Texas substantial deference in determining how much racial preference was needed to achieve the goal of educationally valuable “diversity.” It also emphasized that “The higher education dynamic does not change the narrow tailoring analysis of strict scrutiny applicable in other contexts.” This means that future university affirmative action programs will be subject to the same tough scrutiny that the Court applies to other affirmative action policies. Over the last 25 years, that has almost always meant defeat for the government. By contrast, Grutter emphasizes that “universities occupy a special niche in our constitutional tradition” and that their “good faith” in adopting affirmative action must be presumed absent “a showing to the contrary.”

Today’s majority opinion argues that its brand of nondeferential scrutiny is entirely consistent with Grutter, and that the lower court simply misinterpreted that precedent. It claims that deference applies only to the university’s judgment that “diversity” is educationally valuable, but not to its judgment about how much racial preference is needed to achieve the necessary diversity. I find this part of the opinion unpersuasive. But even if it is correct, today’s ruling is still at odds with the dominant understanding of Grutter by most lower court judges, university administrators, and legal scholars. Until today, the conventional wisdom was that Grutter requires courts to give universities substantial deference in determining how much preference is needed to achieve a “critical mass” of minority students diversity purposes.. It will thus ratchet up the level of scrutiny applied to affirmative action programs in practice, even if one could argue that nothing has changed in theory.

One surprising aspect of Fisher is that two of the three liberal justices participating in the decision – Stephen Breyer and Sonia Sotomayor – joined with the five conservatives (Justice Elena Kagan had recused herself due to earlier involvement in the case). Breyer had nearly always supported affirmative action in previous Supreme Court cases, and Sotomayor was considered a strong affirmative action supporter based on her lower court record. There will be a lot of speculation about why they voted as they did in Fisher. One possible explanation is that they did so to avoid a 5-3 decision that explicitly repudiated key portions of Grutter, which from their perspective would have been a worse outcome. In exchange for joining the majority, Breyer and Sotomayor may have persuaded the conservatives to draft a narrower opinion that purports to be consistent with everything said in Grutter.

There is an interesting concurring opinion by Justice Thomas arguing that Grutter should be overruled, and a dissent by Justice Ruth Bader Ginsburg contending that today’s decision is inconsistent with Grutter and that the lower court ruling should have been affirmed. I may have more to say about them later. For now, the key takeaway from today’s decision is that university affirmative action programs will get tougher judicial scrutiny than they have over the last ten years. Most likely, there will be additional litigation in the lower courts, as plaintiffs challenge affirmative action preferences under Fisher’s tough interpretation of “narrow tailoring.”

UPDATE: It’s worth noting that, in his dissent in Grutter, Justice Kennedy, the author of today’s opinion, argued that the majority had “abandoned” strict scrutiny because it was deferential in its approach to the narrow-tailoring prong of the strict scrutiny test:

The Court confuses deference to a university’s definition of its educational objective with deference to the implementation of this goal. In the context of university admissions the objective of racial diversity can be accepted based on empirical data known to us, but deference is not to be given with respect to the methods by which it is pursued….

The Court, in a review that is nothing short of perfunctory, accepts the University of Michigan Law School’s assurances that its admissions process meets with constitutional requirements. The majority fails to confront the reality of how the Law School’s admissions policy is implemented.

In his Grutter dissent, Kennedy contended that the narrow-tailoring part of the strict scrutiny standard must be applied in a nondeferential way, and faulted the majority for failing to do that. In today’s opinion, he essentially adopts the approach he advocated in that dissent, but simultaneously tries to claim that it is consistent with the Grutter majority.

NOTE: The 1996 Fifth Circuit decision that led to the enactment of the Ten Percent Plan was written by Judge Jerry E. Smith, for whom I clerked several years later. I don’t think this somehow biases my views on either the Ten Percent Plan or affirmative action more generally. But I note this connection here just in case.

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