With Justice Anthony M. Kennedy making a major effort to confine Supreme Court approval of affirmative action on college campuses to one case and one plan, and to limit even that approval to a narrow span of time, the Justices on Thursday barely salvaged the University of Texas’s use of race as a factor in choosing its entering classes. The vote in Fisher v. University of Texas was four to three to allow the Austin campus to continue using an admissions formula it has followed for a dozen years.
Finally rejecting the constitutional challenge that a rejected white applicant had been pursuing for some eight years, the Court in its second review of her case sent few dependable signals to the larger academic community about where race stands as a valid factor in admissions programs. The first tests of how lower courts could react to the ruling could come in lawsuits against Harvard University and the University of North Carolina. Those cases were arranged by the same advocacy organization that had been backing Abigail Noel Fisher of Sugar Land, Texas, in her case against the state’s flagship university.
There were three facets of the Kennedy opinion for the majority that stood out:
First, that opinion referred to the Texas approach as “sui generis” — a Latin phrase for one-of-a-kind. That was the strongest indication that Kennedy wanted to signal lower courts that any different plan would have to satisfy the tough test that Kennedy himself had crafted when the Fisher case was decided by the Court in 2013 — a test that, he concluded on Thursday, the UT-Austin plan had passed.
Second, it stressed that campus leaders in Austin should not interpret the new decision as necessarily meaning that they could continue to follow the same policy, with its partial use of race, without changing it if circumstances change.
Third, it expressly ordered the university “to engage in constant deliberation and continued reflection regarding its admissions policies.” This phrasing appeared to forecast a future vulnerability for the university if it did not regularly review its policy in the future to see if the consideration of racial factors was still necessary to achieve its academic goal of a racially diverse student body.
The majority included Kennedy and Justices Stephen G. Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor. Another Justice who might be counted on to provide a vote for affirmative action in future cases — Elena Kagan — did not take part in the new ruling because she had a role in that case before joining the Court, during her tenure as the U.S. Solicitor General.
Justice Samuel A. Alito, Jr., spoke at great length from the bench on Thursday to announce the lead dissenting opinion, joined by Chief Justice John G. Roberts, Jr., and Justice Clarence Thomas. Alito argued that “something strange has happened” since the Court’s 2013 ruling on the Texas policy, and he went on to accuse Kennedy (the earlier ruling’s author) of giving the Texas university a free legal pass that he had explicitly denied it then.
Justice Thomas also wrote a separate dissenting opinion, repeating an argument that he had previously made that the Court should overrule the 2003 decision in favor of college affirmative action plans — the decision in Grutter v. Bollinger that was the impetus for the University of Texas to fashion a new plan in 2004, making some use of race in its admissions decisions.
Some observers were quick to point out that Thursday’s ruling marked the first time that Justice Kennedy had ever voted to uphold the constitutionality of an affirmative action plan based in any way of race. However, Kennedy had previously written in favor of racial diversity as a valid goal of college educators.
When the next affirmative action case reaches the Court — perhaps in either the Harvard or North Carolina cases now moving toward trials in federal district courts in Boston and Winston-Salem — the make-up of the Court very likely will have changed. The seat still vacant after the death in February of Justice Antonin Scalia may have a new occupant by then.
Depending upon who wins the presidential election in November, a Scalia successor could hold the balance of power on affirmative action in the future, even if Kennedy were to return to his prior skepticism about such uses of race in public policy decisions. Justices Breyer, Ginsburg, and Sotomayor might well have Justice Kagan with them in the future and might form a definite majority when a ninth Justice is on board — depending on presidential politics.