Thursday, June 23, 2016

Another June Surprise: Justice Kennedy Upholds Race-Conscious Admissions in Fisher

David Gans

Confounding those who expected the Roberts Court to deliver a blow to the use of race in university admissions, Justice Anthony Kennedy today authored a 4-3 opinion in Fisher v. University of Texas at Austin upholding the constitutionality of the University of Texas’ modest use of race as one factor among many in choosing a diverse student body.  In line with Justice Kennedy’s surprising 5-4 opinion last term interpreting the Fair Housing Act to provide for disparate impact liability as a way of breaking down unconscious racial prejudices, Kennedy’s opinion is a resounding reaffirmation that the government may use race sensitively to help foster diversity and ensure equality of opportunity for all, regardless of race.  The Framers of the Fourteenth Amendment were the originators of affirmative action, and today’s ruling is consonant with their understanding of the text, history, and purpose of the Equal Protection Clause.

Today’s decision was the second time the Court has ruled in Fisher.  Three years ago, in Fisher I, Justice Kennedy wrote that 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’s opinion today in Fisher II followed these precepts, upholding the University’s modest use of race under strict scrutiny, finding that the University had employed race minimally and only after finding “consistent stagnation in terms of the percentage of minority students enrolling at the University,” reports that minority students “experienced feelings of loneliness and isolation,” and data showing that “only 21 percent of undergraduate classes with five or more students in them had more than one African-American student enrolled.”   

In a strongly worded dissent, Justice Samuel Alito castigated the University’s policy as “affirmative action gone wild” and accused the majority of abandoning strict scrutiny.  But, as Justice Kennedy’s opinion explained, “[c]onsiderable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission”  and the University had acted sensitively—only after race neutral methods proved ineffective—“to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”  This is in line with the Supreme Court’s precedents applying strict scrutiny since Bakke

Strikingly, Justice Kennedy recognized that percentage plans—like the Top Ten Percent plan employed in Texas—are no substitute for race-conscious admissions policies that help ensure meaningful diversity, quoting at length from Justice Ruth Bader Ginsburg’s Fisher I dissent: “Percentage plans are ‘adopted with racially segregated neighborhoods and schools front and center stage.  It is race consciousness, not blindness to race, that drives such plans.’”  Hence, Kennedy wrote today, Fisher “cannot assert simply that increasing the University’s reliance on a percentage plan would make its admissions policy more race neutral.”  One of the most unexpected—and welcome—aspects of Fisher II is Kennedy’s full-throated reliance on these key points made by Justice Ginsburg. 

Fisher II marks the first time that Justice Kennedy has voted to uphold an affirmative action program against constitutional attack.   Many observers today are asking: what’s changed?  But Kennedy has always accepted the basic principle—first established by the Court in Bakke and reaffirmed today—that universities may use race in admissions as one factor among many in choosing a diverse student body.  In 2007, in the Parents Involved case, Kennedy rejected Chief Justice Roberts’s absolutist view that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” insisting that was “too dismissive of the interest government has in ensuring all people have equal opportunity regardless of their race.”     

Last term, in Texas Department of Housing v. Inclusive Communities Project, Kennedy authored a 5-4 opinion that, like today’s ruling in Fisher II, was joined by the Court’s liberals, and castigated in a sharp dissent by Justice Alito as impermissibly race conscious.  Refusing to gut the Fair Housing Act, Kennedy gave the Act a broad reading, noting that “much progress remains in our nation’s continuing struggle against racial isolation” and that disparate impact liability can help break down “covert and illicit stereotyping” that stand in the way of equal opportunity.  These same concerns about racial isolation and stereotyping—more important than ever in the wake of events in Ferguson and elsewhere—are at the fore of Kennedy’s Fisher II opinion.  

Both Justice Thomas and Justice Alito filed dissenting opinions accusing the majority of abandoning their obligation to enforce the constitutional guarantee of equal protection.  But neither made any effort to come to grips with the text and history of the Fourteenth Amendment.  Far from establishing a constitutional ban on the sensitive use of race by the government—the view espoused by Thomas, Alito, and Chief Justice John Roberts—the Framers of the Fourteenth Amendment rejected proposals to prohibit any and all use of racial classifications by the government and, in fact, enacted a long list of forward-looking race-conscious legislation intended to ensure equality of opportunity for all persons regardless of race.  Conservative Supreme Court Justices opposed to the use of race to foster equality have never been able to answer this history.  Indeed, as Josh Blackman recently noted, there has never been any convincing originalist rebuttal to the fact that the Framers of the Fourteenth Amendment were the originators of affirmative action.  The Court’s decision in Fisher II moves the law more in line with constitutional text and history.   

Ed Blum—who financed and spearheaded the Fisher case—hoped to establish a precedent to gut affirmative action across the nation and force universities to abandon policies that, for decades, have helped ensure equal opportunities for all regardless of race.  Today’s ruling dashes Blum’s hopes of rewriting the Fourteenth Amendment to strike down efforts to ensure true racial diversity on our nation’s campuses.  Fisher II makes clear that universities may act to further our Constitution’s promise of equality.  

David H. Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center.  This piece is cross-posted at Text and History

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