Symposium: So what happened between Fisher I and Fisher II?

[Disclosure: As of June 1, I’m a member of the faculty at the University of Texas School of Law, the parent university of which was the respondent in Fisher II. Needless to say, what follows is my personal opinion, and in no way reflects the views of my employer.]

It’s hard to view today’s ruling in the second Fisher v. University of Texas at Austin, in which the Court upheld the University of Texas’s race-conscious admissions program by a four-three vote, as anything other than a stunning surprise. For starters, in his twenty-eight years on the Supreme Court, Justice Anthony Kennedy had never previously voted to uphold a race-based affirmative action program against a constitutional challenge. Add to that the bottom line of the Supreme Court’s 2012 ruling in Fisher I – which seemed to be a not-so-thinly-veiled hint to the court of appeals that a majority of the Justices had serious qualms with the constitutionality of the UT approach, one which the Fifth Circuit politely ignored on remand in reaffirming its earlier decision. Then there was the subsequent grant of certiorari by an eight-Justice Court in Fisher II (with the recusal of Justice Elena Kagan), a move that would’ve been odd if, with Justice Antonin Scalia, the remaining eight Justices were evenly divided. And finally, there was the oral argument last December, in which Kennedy repeatedly expressed frustration “that the litigants, and frankly this Court, have been denied the advantage and the perspective that would be gained if there would be additional fact-finding under the instructions that Fisher [I] sought to give. And that just – we’re just arguing the same case. . . . It’s as if nothing has happened.”

Clearly, though, something happened – whether between the December 9 oral argument and today’s ruling or earlier. We’ll likely have to wait several decades to find out exactly what, if anything, happened behind the scenes – and, among other things, whether Kennedy changed his vote, or simply his mind. And those who focus on Part III of the majority opinion may believe Kennedy when he proclaims that “[t]he University’s program,” presumably like his analysis, “is sui generis.”

But then there’s Part IV – and Kennedy’s discussion of whether UT could (and, so, should) have pursued race-neutral alternatives. Citing Justice Ruth Bader Ginsburg’s dissent in Fisher I, Grutter v. Bollinger (from which he dissented), and the Fifth Circuit’s opinion in Fisher II, Kennedy explained in detail why the Top Ten Percent Plan, on its own, was not an adequate alternative:

Even if, as a matter of raw numbers, minority enrollment would increase under such a regime, petitioner would be hard-pressed to find convincing support for the proposition that college admissions would be improved if they were a function of class rank alone. That approach would sacrifice all other aspects of diversity in pursuit of enrolling a higher number of minority students. A system that selected every student through class rank alone would exclude the star athlete or musician whose grades suffered because of daily practices and training. It would exclude a talented young biologist who struggled to maintain above-average grades in humanities classes. And it would exclude a student whose freshman-year grades were poor because of a family crisis but who got herself back on track in her last three years of school, only to find herself just outside of the top decile of her class.These are but examples of the general problem. Class rank is a single metric, and like any single metric, it will capture certain types of people and miss others. This does not imply that students admitted through holistic review are necessarily more capable or more desirable than those admitted through the Top Ten Percent Plan. It merely reflects the fact that privileging one characteristic above all others does not lead to a diverse student body. Indeed, to compel universities to admit students based on class rank alone is in deep tension with the goal of educational diversity as this Court’s cases have defined it.

Reasonable minds can and will surely disagree over the persuasiveness of this reasoning – including, as in Justice Samuel Alito’s dissenting opinion, at length. But what cannot be denied is the oddity of its authorship or its potential doctrinal impact going forward. Coming from the same Justice who so fervently dissented in Grutter, and who had never previously seen a race-conscious admissions program he liked (including this very same program in Fisher I), the most interesting question that Fisher II raises is not how it will impact affirmative action plans going forward (since the real answer to that question may rest in the hands of Scalia’s successor), but what led to Kennedy’s change of heart here – and when.

Posted in: Featured, Symposium on the Court's ruling in Fisher II

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