an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Two Kinds of Pluralism and the Future of Affirmative Action
Fisher v. Texas II, decided this week in a startling opinion by Justice Kennedy for a 4-3 majority of a short-handed Court, will not end the controversy—or the litigation—over affirmative action in American higher education, which has been an enduring battleground in American constitutional politics for four decades. Throughout that time a succession of conservative near-majorities on the Supreme Court have attempted to end race-based affirmative action once and for all, and to make that rejection the centerpiece of a broader constitutional repudiation of a broad category of liberal race-based interventions. They have perennially come up one vote short. A succession of conservative swing Justices—Lewis Powell, Sandra Day O’Connor, and now as of this week, Anthony Kennedy—have made it their mission to make peace, on their own particular terms, between pro- and anti-affirmative-action constitutional arguments. Each time, that peace has involved tightening the constraints under which universities implement affirmative action programs. In past rounds, these conservative swing Justices have barred uses of race that were more mechanical and blunt, instead favoring a more holistic, individualized approach. (This approach was a sort of handmade gift from the Justices to college admissions officers across America, many of whom owe their very jobs to its labor-intensiveness.)
There were good reasons to expect this pattern to continue with Fisher v. Texas—to expect that Justice Kennedy, while once again stopping short of ending affirmative action, was poised to further tighten the constraints on universities. This time the constraint would not be about holistic review. Instead the plaintiffs in Fisher urged the Court to hold that no affirmative action program that considers the race of individual students is constitutional if there is a “workable” race-neutral alternative. Doctrinally, the plaintiffs more or less got this holding from Justice Kennedy’s opinion in 2013, when Fisher v. Texas reached the Court the first time (Fisher I). But this week Justice Kennedy wrote a different ending to the story. Instead of yet again tightening the constraints on universities—and thereby making their affirmative action programs ever more precisely defined by the contours of legal doctrine, and therefore ever more uniform—he did something unexpected. He loosened the constraints on universities instead, opening up new room for experimentation and for the use of a variety of admissions criteria. He opened up a space for pluralism.
Two different kinds of pluralism. The first is about the approaches different institutions use in admitting their students. The tighter the constitutional constraints imposed by a hostile Court, the more constitutional law tends to press every institution to proceed according to the same model. Justice Kennedy recognized in Fisher II that this is a problem for a democracy that is continuing to contest and revise its approaches to a complex issue that implicates competing, deeply held constitutional values. “In striking this sensitive balance,” he wrote, “public universities, like the States themselves, can serve as ‘laboratories for experimentation.’” In other words, we need a diversity of approaches to diversity.
I find this point quite powerful and unexpected. We are nowhere near the end of the American debate (and increasingly, a global debate) about college access, affirmative action, and equal opportunity. For instance, the interaction among class, geography, and race is emerging now as an area of especially significant contestation. Encasing diverse institutions’ ongoing struggles with these questions too tightly in a straitjacket of Court-made constitutional doctrine is clear folly. But, to see that, you need to place a significant amount of trust in the good faith of our institutions of higher education and in the seriousness with which they weigh competing values and priorities and assess their own performance. That is the most surprising thing about this opinion. A reader of Justice Kennedy’s prior opinions in affirmative action cases—his Grutterdissent is an especially pointed example—would be hard-pressed to find evidence of any such trust. But now, it seems, he has it. I hope that both the University of Texas and American colleges and universities more generally repay the trust that allows them to operate as laboratories for experimentation by fulfilling the concomitant obligation Justice Kennedy spells out at the end of his opinion: to take data collection seriously and assess, in an ongoing way, the effects of affirmative action and other college admissions policies on students and their trajectories.
The second kind of pluralism is about paths to admission to a selective college. As everyone following this case now knows, UT-Austin admits three-quarters of its class, by state law, through the Top Ten Percent Plan, under which the top few graduates of each high school by GPA (now really more like the top 7%) are automatically admitted to the flagship school. Given that many high schools in Texas are de facto extremely racially segregated, this policy reliably results in significant racial diversity, and that was part of its purpose. If UT admitted even more students under the Percent Plan—say, the whole incoming class, instead of three-quarters—there would presumably be even more racial diversity. Instead, UT admits the last quarter of the class according to a system of holistic review that resembles, in a slightly formalized big-school way, the holistic review approaches that Justices Powell and O’Connor have blessed. For this last quarter of the class, many variables are in play beyond GPA: essays, SAT scores, obstacles overcome, and diversity along many axes, including but not limited to race.
The Percent Plan is the obvious “race-neutral alternative” to this Grutter-like system of holistic review and its direct consideration of students’ races. The plaintiffs urged the Court to essentially press Texas to just go ahead and use the Percent Plan for the whole class. Had they won their suit, the plaintiffs would have achieved exactly this policy result: Texas law provides specifically that if affirmative action is ever struck down, the three-quarters cap on the Percent Plan is immediately lifted. UT-Austin would become a school in which everyone—or nearly everyone, because one assumes some workaround would be found for the football team—would be admitted in exactly the same way: through their class rank. As admissions metrics go, class rank is not bad. If I absolutely had to pick one single admissions metric I might pick it. It predicts college success reasonably well. But let’s let Justice Kennedy explain the problem. “Class rank is a single metric, and like any single metric, it will capture certain types of people and miss others,” he writes. “[P]rivileging one characteristic above all others does not lead to a diverse student body.” This, too, is a powerful argument for a kind of pluralism.
At the end of the day, arguments about affirmative action are arguments about equal opportunity—and more generally about how the opportunity structure ought to be shaped. In many industrialized nations’ educational systems, both in Europe and in East Asia, the basic setup is one big test (or set of tests) that comprehensively sorts students and shapes their trajectories. The American system is different. We have more institutions, more distinct gatekeepers, and more different criteria by which an applicant might prove herself. We have, in short, more opportunity pluralism. This diversity extends to colleges’ approaches to the challenge of race and opportunity. Justice Kennedy refused this week to flatten all these approaches into uniformity.
Why did he do this? Why the trust in universities and why the recognition of the value of opportunity pluralism? There is no single answer. Clearly to some extent Justice Kennedy has changed his mind about UT-Austin’s affirmative action program. The fact section of this week’s opinion alone was so much richer and more detailed than the skeletal facts he described in 2013, and those richer facts aided UT’s position enormously. Some credit here is probably due to Fifth Circuit Judge Patrick Higginbotham: after Fisher I sent the case back down to him, his carefully reasoned and factually dense opinion made it clear why maintaining some room outside the Percent Plan made a serious difference to UT’s educational mission. Justice Sotomayor also probably deserves credit. According to inside reporting by Joan Biskupic [see p.200 and following], Justice Kennedy had been poised to write a 5-3 majority opinion striking down Texas’ affirmative action plan in Fisher I, until a sharp dissent circulated by Justice Sotomayor caused him to decide to compromise and send the case back down for further evaluation. Undoubtedly there will be scholars and journalists digging more deeply into this story. That unpublished, circulated draft dissent by Justice Sotomayor will be a hot ticket some unconscionable number of decades in the future. But to me, for now, the more interesting story is Justice Kennedy himself.
Usually with Justice Kennedy, you will not go far wrong by predicting that in a close case, the tie goes to individual dignity—that is, to whichever side Justice Kennedy views as making the argument from dignity. Here, the tie went instead to pluralism. Where in prior opinions Justice Kennedy had been highly skeptical of colleges’ motives and their candor in regard to the use of race, and therefore inclined to invalidate colleges’ affirmative action plans (as he had done in every case until this one), this time that view animated only Justice Alito’s dissent. Kennedy threw in his lot with the very colleges he had mistrusted, relying on their good faith in taking seriously the competing values he sees at work in these cases.
This remarkable shift may have something to do with the distinctive role of the swing justice who sits alone at the fulcrum of a deeply divided Court in a deeply divided society. Fisher II may be the last decision in which Justice Kennedy sits at the clear fulcrum of an otherwise sharply and evenly divided court. There may be something about sitting in this spot that is just different from where he sat at the time of Grutter and Gratz, when Justice O’Connor occupied that middle spot. Reva Siegel has suggested that sitting at that fulcrum causes Justices to be especially cognizant of the potentially “balkanizing” effects of the Court’s decisions, and to seek middle roads that avoid, as Justice Kennedy put it in this case, using race “in a divisive manner” (p. 10). Justice Kennedy clearly seems conscious of bearing that burden. Perhaps he also realized that he, alone, had the power to further ratchet up the high pitch of constitutional combat surrounding the details of how colleges deal with questions of race and equal opportunity. Or, he could dial it back a little, allow for some small measure of a truce, and allow universities a bit of space to struggle in good faith with the complex problems of equal opportunity that these issues present. He chose the latter, and it is now up to the universities to show that this trust was not misplaced.