Elise C. Boddie is Professor of Law at Rutgers Law.
The second installment of Fisher v. University of Texas at Austin is a sound win for diversity and Grutter v. Bollinger’s legacy. It also may have quietly pushed the frontiers of the Court’s race jurisprudence in two ways.
First, the majority opinion tacitly endorses racially inclusionary objectives that are achieved through facially race-neutral means. The constitutionality of such policies has not been explicitly addressed because the Court’s affirmative action cases have focused on the permissibility of racial classifications. The distinction between facial race consciousness (in which race is explicitly used to distribute benefits or burdens to individuals) and general race consciousness matters. Because percentage plans fall in the latter category, they should be presumptively constitutional.
Second, following Justice Lewis Powell’s influential opinion in Regents of the University of California v. Bakke, Fisher II suggests that a university may take cognizance of differences among members of different racial groups in fashioning a race-conscious admissions policy, provided it develops a record in support.
As to the first point, Abigail Fisher had urged the Court to find that the University of Texas could satisfy its diversity-based educational objectives entirely through the use of the state’s Top Ten Percent Plan. Justice Anthony Kennedy first rejected the notion that this alternative was in fact “race neutral”:
As an initial matter, petitioner overlooks the fact that the Top Ten Percent Plan, though facially neutral, cannot be understood apart from its basic purpose, which is to boost minority enrollment. . . . Consequently, petitioner cannot assert simply that increasing the University’s reliance on a percentage plan would make its admissions policy more race neutral.
Citing Justice Ruth Bader Ginsburg’s dissent in Fisher I, Kennedy noted that the reliance on residential segregation to achieve integration in higher education is a race-conscious purpose. But his concern about the percentage plan appears to rest solely on its effectiveness and “workability” as a tool for satisfying narrow tailoring, rather than on its constitutionality as a stand-alone policy:
For all these reasons, although it may be true that the Top Ten Percent Plan in some instances may provide a path out of poverty for those who excel at schools lacking in resources, the Plan cannot serve as the admissions solution that petitioner suggests. Wherever the balance between percentage plans and holistic review should rest, an effective admissions policy cannot prescribe, realistically, the exclusive use of a percentage plan.
Kennedy’s approval of diversity and integration objectives achieved through facially race-neutral (i.e., non-classification) means is consistent with his concurrence in Parents Involved in Community Schools v. Seattle School District No. 1. As Kennedy there noted, these kinds of policies should not even trigger strict scrutiny. In other words, a policy that espouses a race-conscious purpose is only disfavored if it relies on racial classifications; general race consciousness avoids these concerns.
The second point concerns the benefits of intra-racial diversity. The university advanced this argument to justify the supplemental use of race in the holistic part of its admissions process, indicating that the experiences of students of color in predominantly white schools may be materially different than the experiences of students in predominantly black and/or Latino schools. The majority opinion did not decide the issue due to a bare record, but it suggested that an admissions policy that is carefully calibrated to distinguish among students of color might have some constitutional traction:
Petitioner’s acceptance of the Top Ten Percent Plan complicates this Court’s review. In particular, it has led to a record that is almost devoid of information about the students who secured admission to the University through the Plan. The Court thus cannot know how students admitted solely based on their class rank differ in their contribution to diversity from students admitted through holistic review.
Indeed, Kennedy extols the educational benefits of having students with different kinds of academic experiences, noting that exclusive reliance on the percentage plan could “compromise the University’s own definition of the diversity it seeks.” This point too is consistent with the Court’s decisions to strike down policies that rely on overbroad generalizations about people of color. This distinction could be useful to colleges and universities as they evaluate the kinds of experiences that different students of color bring to campus.
These aspects of the Fisher II decision indicate that Kennedy is less reflexively averse to race than has been commonly assumed and that he recognizes some beneficial purposes of race-conscious policies. Kennedy appears strongly inclined to give safe harbor to these policies as long as they do not use racial classifications. Other race-conscious policies that appropriately safeguard the uniqueness of the individual, at least in the higher education admissions context, are also likely to survive his scrutiny.