Supreme Court watchers could be forgiven if last week’s oral argument in Fisher v. University of Texas at Austin gave them a sense of déjà vu. Just three Terms ago, the Court heard the very same challenge to the use of race as a factor in undergraduate admissions at the University of Texas at Austin (UT). The result the last time around—in a case we can now call Fisher I—was to vacate the ruling of the U.S. Court of Appeals for the Fifth Circuit, which had rejected the challenge. Concluding that the appeals court had applied a too-lenient version of “strict scrutiny” to the UT program, the Supreme Court remanded for a tougher version. The Court took the current case—Fisher II—after the appeals court once again upheld the program. Yet, as Justice Anthony Kennedy remarked with evident frustration during last week’s argument, nothing appears to have changed.
That observation is certainly true in the narrow sense in which Justice Kennedy meant it: the factual record in Fisher II contains the same gaps as the factual record in Fisher I. That’s hardly surprising, because no new evidence was introduced in the interim.
Justice Kennedy’s observation is also true in a broader sense. In the 37 years since the Supreme Court decided its first major case concerning race-based affirmative action in higher education, Regents of Univ. of California v. Bakke, the arguments about whether such programs further or undermine equality have changed very little.
Indeed, on close inspection, the Fisher II oral argument shows that in all of that time, the justices still have not clarified the meaning of a crucial pair of concepts in the affirmative action debate: what it means for a program to be race-based—and thus subject to strict judicial scrutiny—versus race-neutral—and thus not.
The Texas Ten Percent Plan
The precise legal question at issue in Fisher II may be unique to Texas. Since 1997, Texas has offered admission to its flagship state university to students who graduated in the top ten percent of their Texas high school classes. Adopted during a period when a federal appeals court had blocked all express use of race in university admissions, the Ten Percent Plan (TPP) results in the admission of substantial numbers of Latino and African American freshmen, without formally using race, despite the persistence of average test score gaps between, on one hand, white and Asian students, and on the other hand, Latino and African American students.
How does the TPP boost minority enrollment? The key is that public and private schools in Texas exhibit very high degrees of de facto segregation. Thus, students who graduate in the top ten percent of almost completely minority schools are themselves overwhelmingly members of minority groups.
The TPP produces a certain kind of diversity in the UT class: not only Latino and African American students but also white students from poor and rural districts. However, UT faculty and administrators contend that the TPP screens out other students who would add to campus life: students who did pretty well in academics but shone in other areas, such as the performing arts; late bloomers with weaker GPAs but high scores on standardized tests; and upper-middle class Latino and African American students who had attended highly competitive schools outside of the inner city.
Accordingly, UT admits the non-TPP portion of its class using a process of “holistic review” that judges the contribution each applicant could make to the class, if admitted. This holistic process includes race as one factor, but because Bakke and later cases permit the use of race in a holistic process, UT argues that the program is constitutional.
The dispute in Fisher II centers on whether the inclusion of race in the holistic process to round out the UT class is “narrowly tailored,” or, in layperson’s terms, necessary to achieving a diverse student body. As Illinois Law Dean Vikram Amar noted in his Verdict column last week, part of that inquiry seems perverse, or at least ironic: The conservative justices who want to limit race-based affirmative action suggested during the oral argument that because the current version of the TPP only boosts Latino and African American enrollment a little, it may be unnecessary and thus unconstitutional; yet, one would have thought that minimizing the use of race is precisely what it means to narrowly tailor the use of race to the problem.
Is the Ten Percent Plan “Race-Neutral”?
Whatever one makes of that seeming Catch-22, there is a more fundamental issue lurking in Fisher II. Whether the challenged use of race in admissions is necessary to achieve racial diversity immediately raises the following question: compared to what? The answer given by the case law is: compared to race-neutral alternatives.
However, during the oral argument in Fisher II, Justice Ruth Bader Ginsburg reiterated an objection that she had previously raised. In her dissent in a 2003 case involving the University of Michigan, Justice Ginsburg said the TPP was not race-neutral. To say otherwise is “disingenuous,” she wrote, because the TPP was “adopted with the specific purpose of increasing representation of African-Americans and Hispanics in the public higher education system.” Then, in Fisher I, Justice Ginsburg stated that “only an ostrich could regard the [TPP] as race unconscious.”
In response to a line of questioning from Justice Ginsburg based on the role of race in the design of the TPP, Bert Rein, the attorney for plaintiff Abigail Fisher, offered a pretty good ostrich impersonation. “The top 10 plan does not classify anybody by race,” he said.
That answer seems unsatisfying because Justice Ginsburg did not contend otherwise. Under longstanding Supreme Court case law, a facially race-neutral law that has a disparate racial impact will nonetheless be treated as race-based, not race-neutral, if it was adopted with the purpose of drawing racial distinctions. Justice Ginsburg realizes that the TPP is facially race-neutral, and thus does not expressly classify anyone by race. Nonetheless, she notes, it has the purpose and effect of increasing the enrollment of racial minorities.
Race-Consciousness Versus Racial Classifications
Still, might there be an important distinction between race-neutral laws—like the TPP—adopted with a race-based purpose and laws that expressly classify people based on race? That seems like a difficult line to draw, because the case law—championed by the very conservative justices who are most skeptical of affirmative action—quite clearly says that principles of equal protection apply “symmetrically” as between laws that disadvantage members of racial minority groups and those that advantage them. And certainly the Court would not treat as race-neutral an admissions requirement that was adopted for the purpose of disadvantaging members of some racial minority group.
Suppose that for decades a state university had admitted just those students who scored highest on an entry exam. Suppose further that, for the clear purpose of reducing the number of Asian American students, the state legislature now mandates that the university use a lottery to select its class from among the applicants who score above a certain minimum, and that doing so reduces the proportion of Asian American students in the entering class by a factor of fifty percent from their proportion under the prior system. In this example, the Court would likely say that the lottery is race-based, even though it does not classify anyone.
But if the hypothetical lottery adopted for an illicit racial motive is race-based, then the “symmetry” principle championed by the conservative justices implies that the TPP is also race-based. So how can they treat it as race-neutral?
The answer is that most of the conservative justices cannot in good faith treat the TPP as race-neutral, but there is one exception. Justice Kennedy has previously parted company with his conservative colleagues in their application of the symmetry principle. For him, at least, “color-blindness” is an inapt metaphor for the meaning of the Equal Protection Clause. As Justice Kennedy wrote in a separate concurrence in a 2007 case involving public schools in Louisville and Seattle, government officials seeking greater racial integration should be “free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race.”
Put differently, Justice Kennedy joins his conservative colleagues in treating all racial classifications as subject to strict scrutiny, even when they aim to boost minority enrollment. However, where the government acts in a formally race-neutral manner, he distinguishes between race-conscious policies of inclusion and race-conscious policies of exclusion, treating only the latter as race-based.
We do not have a satisfactory explanation of why the other conservative justices believe the TPP is race-neutral, but perhaps that need not trouble us. On this issue, as on many others, Justice Kennedy’s views are, ipso facto, the law.