An Affirmative Action Case That May Illustrate Justice Kennedy’s Power on the Supreme Court and Reshape the Law of Race-Based Admissions Programs

The most significant Supreme Court development over the past decade has been the replacement of Justice O’Connor with Justice Alito in 2005.  Justice O’Connor had occupied the “swing” seat on the Court on many issues, which meant that her views controlled the resolution of numerous contentious questions on which the Court was otherwise split 4-4.  With Justice Alito apparently a more consistently conservative vote who is often allied with Justices Scalia and Thomas (and Chief Justice Roberts as well) in blockbuster rulings, the pivot point on the Court has become Justice Anthony Kennedy.  Whether the question is abortion, the death penalty, or immigration, Kennedy’s vote often determines the result today.

Another important matter that underscores Kennedy’s key role is race-based affirmative action; in the space below, I describe and analyze an interesting case on this topic that stands a good chance of being heard on the merits by the Court in the upcoming Term.  If the Court does grant review, then the case, Fisher v. University of Texas, will likely shape the permissible boundaries of affirmative action for the foreseeable future.

To see how the Fisher dispute came about and what it might portend, we need first to go back a ways.

Bakke:  A Seminal Precedent on Affirmative Action in Admissions, Contrasting Plus Factors and Quotas

In 1978, the Supreme Court struck down an affirmative action admissions program undertaken by the medical school at the University of California, Davis, in a case commonly known by the name of the plaintiff, (Alan) Bakke.  In Bakke, a splintered Court said that the Davis plan, under which 16 out of 100 entering medical school slots were reserved for members of traditionally underrepresented racial minorities (e.g., Blacks and Latinas/os), violated federal law (either the Equal Protection Clause of the U.S. Constitution, federal statutes that prohibit discrimination on the basis of race, or both.)

Justice Powell wrote a famous opinion (parts of which were joined by other Justices) that controlled the outcome of the Bakke case.  In it, Justice Powell said that medical schools (and, by extension, other institutions of higher education) had a legitimate and compelling interest in assembling a student body that was diverse along many lines, including race, but that the Constitution forbade the particular means—racial quotas—that Davis had used to further that interest.

Instead, said Justice Powell, an individual applicant’s minority race can be used as a  factor in admissions only when the university also considers a number of diversity aspects other than race, and only when each applicant is compared—taking into account traditional academic strength, the various dimensions along with s/he might add diversity, and other criteria—individually against all other applicants, rather than being evaluated only as against applicants of the same race for a set of predesignated slots.  Justice Powell lauded the racial “plus” plan (which he said was embodied in the way Harvard had structured its admissions) even as he criticized the quota approach.

Because some but not all of Justice Powell’s opinion was joined by four other Justices, there was for many years a debate about whether Justice Powell’s views represented a Supreme Court “holding” that was binding on all lower courts.  (More on that below.)

It is also important to mention that the issues raised by Bakke and subsequent similar cases are not merely limited to public universities.  Title VI of the 1964 Civil Rights Act applies to the vast array of private schools and universities that receive federal funds, and in the past Title VI has been construed to hold these private schools to the same standards that are applicable to public universities under the Fourteenth Amendment.

Hopwood:  The Fifth Circuit Closes the Door on Race-Based Affirmative Action, and the State of Texas Responds

In 1996, the U.S. Court of Appeals for the Fifth Circuit (which includes the state of Texas) issued a major decision in Hopwood v. Texas.  There, the Fifth Circuit embraced a very narrow reading of the permissibility of race-based affirmative action under Bakke, and went on to hold that diversity in education was not a compelling interest that could ever constitutionally justify governmental consideration of an individual’s race at the admissions stage.

The Attorney General of Texas interpreted the Hopwood ruling (which was never taken up by the U.S. Supreme Court) as flatly prohibiting the use of race as a factor in admissions by any undergraduate or graduate program at public universities in Texas.

In response to the ban on race-based affirmative action represented by Hopwood, Texas education leaders adopted the so-called “Top Ten Percent” approach.  Under this policy, which governs the admission of 80 percent of the University of Texas’s entering undergraduate freshman class, students who graduate in the top ten percent (in terms of their high school grades) from every high school in Texas are automatically admitted to the University, regardless of their standardized test scores or letters of recommendation, etc.

This plan has had the effect of admitting many more African Americans and Latinas/os than would otherwise have been the case; under more conventional admissions policies, minority applicants with good high school grades often lose out in the admissions competition to whites and Asians with somewhat lower grades, but substantially higher standardized test scores.  By treating class rankings from all in-state high schools as equal, and by deemphasizing (indeed eliminating) the relevance of standardized test scores (which tend to have a disparate impact along racial lines) for 80 percent of the freshman class, the University of Texas has been able to reclaim some of the racial diversity that Hopwood threatened to eliminate.

(So-called “percent plans” like Texas’ have been used, with significant variations, in other states, such as Florida and California, too.  But such plans have not been used for professional or graduate school admission, in part because comparing grades among colleges across the country is even harder than comparing high school grades within a state.)

Grutter:  The Supreme Court Reopens the Door by Embracing Powell’s Approach

In 2003, 25 years after Bakke, the Supreme Court again took up the question of race-conscious affirmative action in higher education in a pair of cases involving the University of Michigan.

In Grutter v. Bollinger, the Justices, by a 5-4 vote with Justice O’Connor writing for the majority, adopted the approach of Justice Powell in Bakke in upholding the University of Michigan Law School’s race-based affirmative action plan.  Whether or not Justice Powell’s view—that racial diversity was a compelling interest that could be permissibly furthered by a narrowly tailored policy that looked at the entirety of the personal and academic attributes of each candidate (including her race) in a system where no slots were reserved for people of particular races—was a “holding” for the Court in 1978, the Court adopted that approach in Grutter and made it indisputably the law of the land.

And because, said the Court, the Michigan law school plan at issue in Grutter did not use quotas, but rather took into account race and other characteristics of each applicant in a person-specific and holistic way, the plan survived the “strict scrutiny” that is required under the Constitution for all governmental consideration of an individual’s race.  Chief Justice Rehnquist, joined by Justices Scalia, Kennedy, and Thomas, dissented.

In the companion case, Gratz v. Bollinger, the University of Michigan’s undergraduate admissions program, which used race in a more systematic and mechanical way, was struck down by the Court because it operated too much like the forbidden Bakke quota system.

After Grutter (which in effect reversed the Fifth Circuit’s Hopwood decision, albeit seven years later), the state of Texas was again constitutionally permitted to make use of race-based affirmative action in its universities, and it chose to do just that for the University of Texas’ undergraduate admissions.  More specifically, Texas added a Michigan Law School/Harvard-style “racial plus” plan—in which each individual applicant’s contribution to racial and other kinds of diversity can add a boost to her candidacy—to the already existing “Top Ten Percent” policy, so that both would operate at the same time to boost diversity at the University.

Fisher:  The Case That May Once Again Bring Affirmative Action to the High Court

That’s where Abigail Fisher and the other plaintiffs in her case came in.  Fisher and other University of Texas applicants sued the University, alleging that its decision to resume considering the race of individual applicants violates the Equal Protection Clause and federal civil rights statutes.

These plaintiffs lost, in January of this year, in front of a three-judge panel of the Fifth Circuit.  Feeling bound by Grutter, and applying Grutter in a way that afforded the University of Texas a large degree of deference in its decisionmaking, the judges of the Fifth Circuit felt they had no choice but to uphold the University’s policy.

Notably, one of the three judges (all of whom voted against the plaintiffs) openly criticized Grutter even though he felt constrained to obey it.  And another one of the three judges criticized the “Top Ten Percent” scheme even though he felt that the policy’s legality was not, strictly speaking, part of the challenge before the court.

The plaintiffs then sought “en banc” review—that is, they sought to present their case in front of the entire Fifth Circuit.  However, by a 9-7 vote, the Fifth Circuit Judges in June decided not to grant en banc review.  Judge Edith Jones, joined by four others, published a dissent from the decision to deny en banc review, in which she argued that the three-judge panel misapplied Grutter even if Grutter remains a precedent that is binding on lower courts.  Judge Jones’s prominent dissent sends a strong signal to the Supreme Court that this case warrants its attention, and also provides a roadmap for the plaintiffs to file a cert petition in the coming weeks.

Fisher’s Fate in the Supreme Court

Will the Supreme Court be interested in granting review in Fisher?  I think there is a very good chance.  Race-based affirmative action is a constitutional topic that is very important to many of the Justices, including the conservatives.

To the extent that it has been hard to generate the necessary four votes to grant review in university affirmative action cases in the past (notice the 25-year gap between Bakke and Grutter), I believe much of the difficulty can be explained by an uncertainty about how such cases would come out on the merits.  Unsure of how Justice O’Connor (when she was on the Court) or Justice Kennedy would rule after oral argument, both liberal and conservative wings on the Court were often reluctant to take their chances on granting review.

But given that the four most conservative Justices have signaled that they think government consideration of an individual student’s race is never, or almost never, permissible (most strongly in the 2007 Parents Involved case, striking down a race-based pupil assignment system in Seattle high schools), and given Justice Kennedy’s vote and the dissenting opinion he wrote in Grutter, the probable outcome if Fisher is heard on the merits seems pretty clear; the Court would likely reverse the Fifth Circuit panel.

How Justice Kennedy Might React in Fisher

I say this because Justice Kennedy’s big criticism of the majority in Grutter was that they weren’t dutifully applying the true strict scrutiny that is required for all race-based government actions, but were instead extending, without being honest about it, tremendous deference to the University of Michigan Law School.  And the Fifth Circuit three-judge panel is quite explicit in the deference that it affords to the University of Texas (which is one of the big complaints Judge Jones raised in her dissent from the denial of en banc review.)

Not only did the three-judge Fifth Circuit panel defer to the University on the question of whether diversity is a compelling interest (and in that respect it was following clear language in the Grutter majority extending deference on that question), it also deferred to the University on the means chosen to advance that interest.  According to the three-judge panel, “the narrow-tailoring inquiry [that is, the question whether the means chosen are narrowly tailored]—like the compelling-interest inquiry—is undertaken with a degree of deference to the University’s constitutionally protected, presumably expert academic judgment.”

Indeed, the three-judge panel admitted that it was not really evaluating whether the University’s program is “necessary” to the accomplishment of the compelling interest—which is what strict scrutiny normally requires.  Instead, said the three-judge panel, “[r]ather than second-guess the merits of the University’s decision, a task we are ill-equipped to perform, we . . .  scrutinize the University’s decisionmaking process to ensure that its decision to adopt a race-conscious admissions policy followed from the good faith consideration Grutter requires.”

But Justice Kennedy (along with the four more conservative Justices) certainly would not sign on to this approach.  To be sure, good-faith consideration of all alternatives by government decisionmakers before they take an individual’s race into account may be part of what strict scrutiny requires, but the Chief Justice and Justices Scalia, Kennedy, Thomas and Alito think it also requires much more—it requires courts to carefully scrutinize the substance—not just the process—of the government’s decision to use race.

As Justice Kennedy wrote in his dissent in Grutter, “the Court [majority] confuses deference to a university’s definition of its educational objective with deference to the implementation of this goal. . . . [D]eference is not to be given with respect to the methods by which [the goal] is pursued.”

Nor should defenders of the University of Texas hold out much hope that Justice Kennedy will feel bound by stare decisis (that is, the obligation to honor past precedent) to uphold what the Fifth Circuit did.  The Grutter majority never openly admitted that it had extended deference as to the implementation of a university’s goal; that is just what Justice Kennedy and other dissenters characterized the Court as having done in reality.  Thus, the Fifth Circuit cannot really point to any language in Grutter that justifies the Fifth Circuit panel’s explicit decision to grant the University of Texas deference and to review only the decisionmaking process, and not the substance, of the decision.  (For that reason, the Fifth Circuit’s attempts to cite particular sentences in Grutter as supporting explicit deference are quite unpersuasive.)  So even if Justice Kennedy feels bound by Grutter, he still is not likely to embrace the Fifth Circuit’s decision to openly abandon traditional strict scrutiny outright.

The other basis on which Justice Kennedy (and the more conservative Justices) might be inclined to reverse the Fifth Circuit has to do with the “Top Ten Percent” plan.  Even if a Harvard-style “plus” plan can pass constitutional muster sometimes, because it is necessary to accomplish educational diversity, it might not be necessary—and thus constitutionally permissible—if a “percent plan” is already operating and accomplishing results that exhibit some diversity.

The Three Options Among Which Justice Kennedy Will Likely Choose, If the Court Does Opt to Review Fisher

At the end of the day, Justice Kennedy, the swing vote, is likely to do one of three things on the merits:  (1) hold that traditional, substantive strict scrutiny is required as to the means chosen by the University, and remand the case back to the Fifth Circuit so that it may apply that true strict scrutiny in the first instance; (2) hold that traditional, substantive strict scrutiny is required and apply that level of scrutiny at the Supreme Court to invalidate the University’s program, because the program is too mechanical or because the “Top Ten Percent” plan makes it unnecessary; or (3) hold that while race and racial diversity may be used at a higher level of generality to decide, for example, where to build a school or what programs to offer to attract a diverse student body, it may never be used in a way that takes into account the race of individual students.  (That would be similar to the Hopwood approach.)

This last possibility might find some support in various statements Justice Kennedy made in the 2007 Parents Involved Seattle high school case.  But Justice Kennedy did say the following in his Grutter dissent:  “There is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity . . . [provided] each applicant receives individual consideration and that race does not become a predominant factor in admissions decisionmaking.”  That sounds a lot like an embracing of Justice Powell’s approach in Bakke, so long as courts rigorously ensure that the approach is carefully followed.

Thus, I don’t know that anyone can predict with confidence exactly what Justice Kennedy will do if Fisher is heard on the merits, but one thing is clear:  He certainly would be likely to find fault with the deferential approach of the Fifth Circuit.

For all these reasons, then, I think the conservatives on the Court might feel comfortable granting review on the case if and when it arrives.  We should know for sure in just a few months.

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