Last week, the U.S. Supreme Court added a case to its docket that will give the Justices an occasion to revisit the always-contentious question of the constitutional limits on race-based affirmative action in higher education. Fisher v. University of Texas at Austin is the first affirmative action case to come before the Court since the retirement of Justice Sandra Day O’Connor, whose centrist views on the topic were controlling when the Justices last addressed the issue, in 2003. Accordingly, the case will be closely watched when it is argued next Fall.
To be sure, Fisher includes enough idiosyncratic wrinkles for the High Court to resolve it without fundamentally transforming existing precedent. But however the Court rules—for or against the plaintiff, broadly or narrowly—no one should expect a ruling that fully reflects the true stakes of the case. As I shall explain in this column, after over three decades, the Court’s jurisprudential categories about race-based affirmative action have left liberals and conservatives alike in the same sort of awkward position in which the rest of the country finds itself when talking about race.
The Bakke Case
To understand what is at stake in Fisher, it will be helpful to review the leading precedents regarding race-based affirmative action in higher education. The Supreme Court’s first substantial foray into the matter occurred in the 1978 case of Regents of Univ. of California v. Bakke. At issue was a U.C. Davis Medical School program that set aside a fraction of the seats in the entering class for “disadvantaged” applicants, defined, in practice, to mean minority applicants. Bakke, a white applicant, was denied admission and challenged the program on both statutory and constitutional grounds, which were treated by the Court as largely equivalent.
Yet the Court splintered in Bakke. Four relatively conservative Justices espoused a principle of colorblindness, under which racial classifications designed to help traditionally disadvantaged minorities (like the one deployed by U.C. Davis) are judged by the same demanding “strict scrutiny” standard as laws that discriminate against racial minorities. (To satisfy strict scrutiny, a law or government program must be “narrowly tailored” to advance a “compelling interest.”) These four Justices voted to invalidate the Davis admissions program, and would have forbidden all use of race in admissions decisions.
A different four Justices rejected colorblindness in favor of “intermediate scrutiny” for government uses of race, like Davis’s, that aim to ameliorate discrimination. (To satisfy intermediate scrutiny, a law or government program must “substantially advance” an “important” government interest). These four relatively liberal Justices would have upheld the Davis program.
Finally, Justice Lewis Powell split the difference. He agreed with his more conservative colleagues that strict scrutiny should apply to all racial classifications, even those that were assertedly benign. He also agreed that, in setting aside particular seats for minority applicants, the Davis program was unlawful. But he went on to say that a university could take race into account under a holistic admissions program that looks at all aspects of a candidate’s background and attributes, because doing so would contribute to the diversity of viewpoints expressed in the university.
Because Justice Powell occupied the middle ground in Bakke, his view was controlling, even though he only spoke for himself. Accordingly, for many years after the Bakke decision, Powell’s opinion was the template for race-based affirmative action in higher education. It established that: (1) diversity was a compelling interest that satisfies the strict scrutiny test; but only if (2) the defendant institution pursues diversity through the holistic evaluation of each individual applicant, rather than through a quota or set-aside.
The Texas Top Ten-Percent Law
There matters stood until 1996, when the United States Court of Appeals for the Fifth Circuit, in Hopwood v. Texas, dropped a bombshell. Powell’s Bakke opinion had never been fully controlling on the question of whether diversity is a compelling interest for the government to assert, the Fifth Circuit said, and to the extent that it was controlling, it had been superseded by subsequent Supreme Court decisions (in affirmative action cases outside the education context) that stated that the only compelling interest that can justify a racial classification is the interest in remedying specific acts of racial discrimination perpetrated by the institution in question.
The Supreme Court never reviewed the Fifth Circuit ruling in Hopwood, so for a time, all race-based affirmative action was forbidden in state universities in Texas (and Louisiana and Mississippi). Then Texas responded with a clever work-around: the top-ten-percent law: Any Texas student who graduates in the top ten percent of his or her high school class is guaranteed admission to a school within the University of Texas system. Additional factors then determine the campus where, and course of study in which, a student may enroll.
The Texas top-ten-percent law did not use any racial classifications, but it nonetheless produced substantial racial and ethnic diversity, even though African American and Latino high school students, on average, had (and continue to have) lower test scores than white and Asian students. Why? Because high schools in Texas—as in most of the country—exhibit a high degree of de facto racial and ethnic segregation, which in turn reflects de facto residential segregation. By definition, the top ten percent of the graduates of a school with a large student body that is nearly entirely African American and Latino will be nearly entirely African American and Latino. I shall have a bit more to say about this aspect of the Texas program in a moment, but for now, I need to take account of another set of Supreme Court cases.
The University of Michigan Cases
In a pair of cases in 2003, the Supreme Court seemed to finally clear up the ambiguity that its fractured Bakke decision had left a quarter of a century earlier. Both cases involved the University of Michigan, and in both, a majority of the Court endorsed Justice Powell’s approach from Bakke. Although different Justices combined to form different majorities in each case, the overall result is relatively easy to summarize.
In undergraduate admissions, the University of Michigan assigned a fixed number of points for underrepresented minorities simply because of their minority status. The Court, in Gratz v. Bollinger, held that this was too much like a fixed set-aside to qualify as the sort of holistic approach that Bakke allowed. But in law school admissions, the University of Michigan did not use a fixed-point system, looking instead to the fact that an applicant belonged to an underrepresented minority group as one factor in the determination of whether that applicant would be admitted. Thus, the Court upheld the law school’s program, in Grutter v. Bollinger.
Texas Responds—And Gets Sued
Although Gratz and Grutter could, in theory, have substantially altered the legal landscape, their actual impact in most of the country was modest. For example, since the passage of Proposition 209 in 1996, state universities (and other state institutions) in California have been forbidden by state law from making any use of race in admissions. Nothing in Gratz or Grutter changed that, because those cases simply defined the boundaries of permissible affirmative action programs; neither case requires that any school adopt an affirmative action program.
In most other states, Gratz and Grutter left things more or less as they had been. Lawyers in those other states had been assuming that Bakke was the law, and Gratz and Grutter affirmed that view.
But Texas was different. For Texas, Grutter in particular had the effect of lifting the complete ban on race-based affirmative action that had been in place since the Fifth Circuit’s ruling in the Hopwood case. Texas responded by tweaking its top-ten-percent law.
The University of Texas continues to admit most of its students under the top-ten-percent law, but it now adds consideration of race, as one of a number of factors, in admitting applicants to particular campuses and programs, and in making admissions decisions for non-top-ten-percent applicants. Fisher, a white applicant who was not in the top ten percent of her high school class, was denied admission to the University of Texas, and sued.
Fisher lost in the lower courts. Both the federal district court and the court of appeals found that the use of race in Texas fell on the Grutter (permissible) side of the line, rather than the Gratz (impermissible) side. Like the University of Michigan Law School, the University of Texas aims at achieving a “critical mass” of underrepresented minority students, and pursues that aim through a holistic, rather than a fixed-point, system.
The Issues in the Fisher Case
In her petition for certiorari, Fisher emphasized a number of potentially important distinctions between her case and Grutter. Two seem particularly notable: First, in Grutter, there was no indication that race-neutral means would achieve a critical mass of under-represented minorities, but in Texas, Fisher claimed, the top-ten-percent law does achieve that purpose, rendering the additional express use of race unnecessary. Second, although overall student-body racial diversity may be a compelling interest, the use of race in Texas now aims at racial diversity in each individual classroom, and that is not a compelling interest.
In addition, a third issue infused Fisher’s petition. The majority in Grutter had extended a measure of deference to educational professionals in the design of their admissions programs, and the Fifth Circuit followed suit in Fisher’s case. Her certiorari petition argued that, in so doing, the Fifth Circuit had abandoned strict scrutiny.
If the Fisher case only presented the question of whether the Fifth Circuit correctly or incorrectly applied Grutter to the University of Texas, it would hold very little interest for anyone outside of Texas. The really important question is what Grutter will mean going forward. Grutter was decided by a 5-4 margin, but since Justice Alito replaced Justice O’Connor, Justice Kennedy has become the new center of the Court. Thus, in the Fisher case—as on so many other issues—what observers want to know is how Justice Kennedy understands Grutter.
For defenders of affirmative action, the good news is that in his dissent in Grutter, Justice Kennedy pretty clearly accepted Justice Powell’s opinion in Bakke as controlling. The bad news is that Justice Kennedy has never actually voted to uphold an affirmative action program.
Even if Justice Kennedy joins the Court’s conservatives to strike down the University of Texas admissions program, the case’s impact would be limited unless, in doing so, the Court expressly overruled Grutter. And that seems unlikely. Under Chief Justice Roberts, the Supreme Court much more commonly finds ways to distinguish, rather than to overrule, precedents with which a majority of the Justices disagrees.
Expect Dishonesty From Both Sides
So how do I expect the Court to resolve the Fisher case? Having been burned too many times before, I won’t venture a prediction about the outcome, but I am willing to predict that there will be a substantial measure of dishonesty in the opinions of all of the Justices.
Roughly since the time when the Court decided Bakke, liberal supporters of affirmative action have contended that they accept that strict scrutiny applies to all racial classifications, even as they define strict scrutiny to mean not-so-strict scrutiny when it comes to affirmative action. Traditional strict scrutiny—of the sort that applies to race-based classifications that disadvantage racial minorities—is almost impossible to satisfy. By contrast, the watered-down version of strict scrutiny that the more liberal Justices apply in affirmative action cases is difficult to distinguish from the intermediate-scrutiny approach that the four liberals endorsed in the Bakke case.
Meanwhile, the conservatives also do not appear to believe in the principle of colorblindness that they espouse. Here, the problem is the assumption that the Texas top-ten-percent law is colorblind. As noted above, the chief reason that the top-ten-percent law produces diversity is that Texas secondary schools are de facto segregated. The Texas legislature undoubtedly adopted the top-ten-percent law precisely for the purpose of boosting minority enrollment without any express reliance on race. But if the Court really endorsed a principle of colorblindness, then it would subject the top-ten-percent program itself to strict scrutiny.
To see why, consider a thought experiment. Suppose that Texas universities admitted students exclusively on the basis of an entrance exam, and that the graduates of a relatively small number of special high schools produced the majority of African Americans and Latinos who excelled on the entrance exam. Now suppose that the legislature changed from a system that used the entrance exam alone, to a different system that capped the number of students the state university would admit at ten percent from any given school, with the purpose and effect of reducing the number of African American and Latino students who were admitted. Under the Supreme Court’s cases, this move would be subject to strict scrutiny, even though it would not expressly use a racial classification. And therefore, if the Court’s doctrine were truly colorblind, then the actual Texas top-ten-percent law should be subject to strict scrutiny as well—because true colorblindness means that there’s no difference between attempts to limit or expand minority-student enrollment.
And yet, to their credit, the conservatives do not appear to be troubled by the actual Texas top-ten-percent law. Thus, like the liberals, they only pay lip service to the notion of colorblindness.
Does the foregoing observation suggest that the Court is not really so divided over affirmative action after all? Not really. Liberals and conservatives have different reasons for only pretending to believe in colorblindness, and those reasons cash out into different positions in concrete cases.
What does seem to unite legal liberals and conservatives in this regard is similar to what unites Americans: A shared awkwardness in talking about race. Seen in this way, the Justices’ fibbing about colorblindness is simply a lawyer’s version of our national difficulty with confronting our racial past, present and future