Justice Kennedy’s Majority Opinion in the Fisher Affirmative Action Ruling Muddles Even as It Illuminates

The biggest problem with the Supreme Court’s affirmative action case law over the last four decades is the lack of candor (some would say dishonesty) in the way the Court discusses the constitutional limits on government’s ability to use race. In short, what the Court says often doesn’t line up with its own constitutional gut, as reflected in many of its bottom-line decisions.

Against this backdrop, Justice Anthony Kennedy’s majority opinion last week in Fisher v. Texas upholding the part of the University of Texas (UT) undergraduate admissions policy that formally takes the race of individual applicants into account in admitting a portion of the entering freshman class deserves some credit for a couple of ways in which it is more forthright than many other majority Court opinions (including many that Justice Kennedy either wrote or joined) in this area of constitutional law. First, Justice Kennedy’s analysis and language acknowledge the sad but undeniable reality that absent substantial proactive efforts, the number and percentage of African American and Latina(o) students at many flagship public universities (and private universities as well) would today remain shockingly low. Justice Kennedy’s recognition of the “stagnation in terms of the percentage of minority students enrolling” absent aggressive governmental efforts stands in meaningful contrast to the closing suggestion in Justice O’Connor’s opinion in 2003 (in Grutter v. Bollinger) that the Court “expect[s] that 25 years from now, the use of racial preferences will no longer be necessary” to accomplish racial diversity in higher education. We are, in 2016, now more than halfway into Justice O’Connor’s 25-year timeline, and her expectation does not seem particularly realistic.

Second, Justice Kennedy points out that even programs that the conservative justices (who are skeptical of old-fashioned race-based affirmative action) themselves seem to accept are, in some sense at least, “race-conscious.” Take, for example, the so-called Top Ten Percent Plan that UT uses to admit the bulk of its freshmen. This program does not take the race of individual applicants into account but instead guarantees admission to each student who earns among the highest grade-point averages (in the top 10 or so percent) from his or her high school, without regard to the student’s standardized test scores, extracurricular activities, etc. This program has the effect of increasing the racial diversity of UT largely because of the pronounced residential segregation that exists throughout the state (guaranteeing that the top grade-earners in many high schools will be persons of color.) In response to the Fisher plaintiff’s suggestion that UT should, if it wants to increase diversity more, expand the Top Ten Percent plan rather than take into account the race of individual applicants, Justice Kennedy said that the Top Ten Percent Plan “cannot be understood apart from its basic purpose, which is to boost minority enrollment. . . . Consequently, [the plaintiff] cannot assert simply that increasing the University’s reliance on a percentage plan would make its admissions policy more race neutral.”

Justice Kennedy is likely right that many percentage plans are motivated by a desire to increase racial diversity (along with, perhaps, geographical and socio-economic diversity), and he deserves some props for his honesty here. But, as I explain more fully below, Justice Kennedy’s attempts to be more honest do not go far enough, and indeed in important respects muck up the legal doctrine in this area even more.

The biggest reason for this is that Justice Kennedy’s Fisher opinion (like many other affirmative action opinions by the Court since the mid-1980s) fails to address or explode the biggest lie (or fiction) – that equal protection doctrine should or does treat all governmental considerations of race in a uniform, symmetrical way, and in such a way that it doesn’t matter which racial groups are helped or hurt by the programs in question.

Let’s explore further Justice Kennedy’s acknowledgment that so-called percentage plans are not “race neutral” because they are motivated by a desire to improve diversity. This acknowledgment raises more questions than it answers. First, if percentage plans are not racially neutral because of their motivation, why are the targeted “outreach” and “scholarship” programs he describes earlier as “race neutral” not similarly race conscious? These programs were clearly motivated, just as much as the Top Ten Percent Plan, by a desire to increase minority representation at UT.

Second, and much more fundamentally, if all programs that are motivated by a desire to improve diversity—even programs that are formally race-neutral (in that they do not look at the race of individual applicants but instead alter the criteria of admission and the like)—are to be considered race conscious and not race neutral, then what does it mean to say, as Justice Kennedy says in Fisher and has said many times before, that the Constitution imposes “on the university the ultimate burden of demonstrating that race-neutral alternatives that are both available and workable do not suffice?” In past cases and in Fisher, the Court (with Justice Kennedy often taking the lead) has suggested that the essence of “strict scrutiny” is the judicially enforceable requirement that a university consider and explore race-neutral ways to promote racial diversity before moving to race-conscious approaches. But if every plan that a university looks at or dreams up in order to promote diversity is, because of that motive, race conscious (and not race neutral), then there is nothing “race neutral” a university can ever do to increase diversity, because any mindful attempt to increase racial diversity—by any means—is race conscious! In other words, this key aspect of strict scrutiny analysis collapses in on itself and becomes meaningless because there are, by definition, no race-neutral programs for a university to consider before adopting a race-conscious alternative.

To be clear, when the liberal justices (like Justice Ginsburg in some earlier writings) point out that percentage plans are not race neutral, they do so to challenge the very foundation of modern affirmative action doctrine that programs designed to help minorities should be subject to strict scrutiny at all.  So exploding the fiction works in their argument. But it is hard to see how it makes sense for Justice Kennedy, who still expresses skepticism of affirmative action—and who still seem to want to apply strict scrutiny—to lump all race-conscious programs (percentage plans and plans that consider the race of individuals) into the same doctrinal basket. He likely still believes that some kinds of attempts to promote diversity are preferable to others, but his Fisher analysis makes it harder for him in later cases to make that argument.

Indeed, now that we know percentage plans are race conscious, we should ask whether they themselves (even without a supplementary component that looks at the race of individuals the way UT does) will be subject to strict scrutiny. Does a university that has some diversity but wants more and that adopts a percentage plan to obtain it run the risk of having that plan invalidated? In non-affirmative action cases like Washington v. Davis, the Court has made clear that government cannot tweak the criteria of selection to make it less likely that minority candidates will succeed in obtaining jobs, admissions slots, etc. Justice Kennedy has now found (as a matter of constitutional fact) that Texas has tweaked its admissions criteria in order to make it more likely that minorities will succeed. If, as the conservative majority opinions Justice Kennedy has joined say, there is constitutional symmetry between all uses of race, then UT’s percentage plan itself would seem to be in trouble.

Now I don’t think Kennedy or any of the rest of the Fisher majority (or even many of the dissenters) would so rule, but the reason for that is doctrinal symmetry on which the conservative justices insist simply makes little sense, a point that Justice Kennedy’s opinion unwittingly (and perhaps unwillingly) demonstrates.

A related and equally unexplained suggestion earlier in Justice Kennedy’s opinion is that “the consideration of race [under UT’s formally race-based policy] may be beneficial to any UT applicant—including whites.” Does Justice Kennedy really mean to suggest that UT could give a plus to a white applicant if the campus to which she was applying was one in which whites were underrepresented (perhaps because most whites were attending other campuses)? Again, I rather doubt that a majority of the Court would be open to race-based programs that give a formal plus to white applicants, especially in a state like Texas (where whites are a statewide majority and hold most of the political and economic clout). If I am correct, then, contrary to Justice Kennedy’s assertions, there is an asymmetry in the results the Court would reach, whether the Court admits it or not.

Let me close with a thought experiment that combines the last two points—about plans that tweak the criteria of admission and plans that are intended to give whites a boost. Consider a university policy (say in the University of California or University of Illinois, both of which have a high percentage of students of Asian ancestry) that deemphasized, as a criterion of admission, the math portion of the SAT (and attached increased weight to the verbal section) in a way that led many observers to believe that a goal was to increase the percentage of white vis-à-vis Asian students.  My guess is that courts would be more likely to invalidate that plan than UT’s Top Ten Percent Plan, even if the evidence of race-conscious motive were stronger with respect to the Top Ten Percent Plan (that is, if we have more confidence that Texas’s Plan was intended to increase minority representation than we were that the hypothetical plan was intended to increase white and reduce Asian representation).

What this thought experiment shows to me is that in evaluating these programs we do care about which groups are helped and hurt—and groups that have been historically victimized and excluded and that lack political access and clout are treated differently than in-groups. We have lost this theme in affirmative action jurisprudence, which used to talk about remedy and political powerlessness but now speaks only in terms of diversity and multi-cultural exposure. The latter are laudable, but the former are important too, and end up driving many intuitions and results. Until we acknowledge this, the Court’s opinions in this field are never going to ring very true.