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.