For the last several years, supporters of affirmative action have awoken every day justifiably fearing that the courts would bring race-conscious university admissions policies to a swift end. The 2006 appointment of Justice Samuel Alito gave conservatives a solid majority on the Supreme Court, and Justice Anthony Kennedy, the closest thing the Court has to a swing voter on issues of race, has not historically been sympathetic to affirmative action.
Fisher v. University of Texas at Austin, which the Supreme Court decided on Thursday, was the vehicle opponents of affirmative action chose in order to kill the programs. And, as this case proceeded through one of the most conservative federal appeals courts in the country and then, to two separate trips to the Supreme Court, it looked likely that affirmative action was on its death bed. Worse, for defenders of race-conscious programs, Justice Elena Kagan was recused from Fisher, so Justice Antonin Scalia’s recent death appeared unlikely to change the outcome in this case.
At yet, affirmative action will survive. As ThinkProgress quipped shortly after the second round of Supreme Court oral arguments in Fisher, Justice Kennedy spent the entirety of this litigation playing the role of the Dread Pirate Roberts from Rob Reiner’s classic film The Princess Bride. In that film, the Dread Pirate keeps a captive alive, telling him each night that “I’ll most likely kill you in the morning.” Yet in the end, the pirate does not kill his captive, instead turning over his ship and his title to the new Dread Pirate.
As it was in the movies, so it was Thursday in the Supreme Court — sort of. Though Kennedy appeared likely to kill affirmative action at many turns throughout this case, he cast the key fourth vote to uphold it over the dissents of his three most conservative colleagues. But, while Fisher is a victory for affirmative action, it is only a partial one. Kennedy’s opinion makes it clear that universities have a high and ongoing burden if they want to maintain affirmative action programs. It could also potentially inspire a rash of harassment suits targeting these programs.
The University of Texas’ admissions system, as Kennedy notes, is unusual. About three-quarters of the class is admitted through a “Top Ten Percent Plan,” which admits all Texas high school students in the top ten percent (or, more recently, about the top eight percent) regardless of their other qualifications. This plan does admit some students of color, but it only achieved fairly marginal diversity. In 2002, for example, before the university implemented the affirmative action program that was challenged in Fisher, “52 percent of undergraduate classes with at least five students had no African-American students enrolled in them, and 27 percent had only one African-American student.”
Then, in 2003, the Supreme Court upheld an affirmative action program at the University of Michigan law school in Grutter v. Bollinger. As Grutter held, and as Kennedy reiterates in Thursday’s opinion, universities may consider race in admissions because racial diversity benefits all students. “Enrolling a diverse student body ‘promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races,’” Kennedy explains. “Equally important, ‘student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.’”
In the wake of Grutter, Texas decided that race would be one of a myriad of factors that would play a minor role in determining who was admitted among the 25 percent of students who were not admitted by the Top Ten Percent plan. Kennedy’s opinion holds that Texas did not violate the Constitution when they decided to consider race in this way.
So that’s the good news for affirmative action. The bad news is that Kennedy’s opinion also imposes tough and continuing burdens on universities that wish to implement similar affirmative action programs. “Because racial characteristics so seldom provide a relevant basis for disparate treatment,” Kennedy explains, “race may not be considered [by a university] unless the admissions process can withstand” the highest level of constitutional scrutiny. In practice, that means that “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.” An admissions policy that survives review today may no longer pass Kennedy’s test tomorrow.
Kennedy also emphasizes just how many hoops Texas jumped through in order to produce an acceptable plan. The University of Texas “conducted ‘months of study and deliberation, including retreats, interviews, [and] review of data.’” This review culminated in a “39-page proposal” that “was written following a year-long study, which concluded that ‘[t]he use of race-neutral policies and programs ha[d] not been successful’ in ‘provid[ing] an educational setting that fosters cross-racial understanding, provid[ing] enlightened discussion and learning, [or] prepar[ing] students to function in an increasingly diverse workforce and society.’”
So, while other universities remain free to implement affirmative action programs after Fisher, they will need to jump through similar hoops. And even if they succeed in doing so, they still have an “ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.” It is easy to imagine how conservative litigators can turn this obligation into an opportunity to harass universities with expensive suits designed to wear down the school’s commitment to affirmative action.
In the meantime, however, affirmative action survives another day. That’s an outcome few people thought possible when Fisher first reached the Supreme Court.