Symposium: Surprisingly, facts rule the day in Fisher II

Kimberly West-Faulcon is the author of amicus briefs in Fisher I and Fisher II. She teaches constitutional law at Loyola Law School in Los Angeles, where she holds the endowed James P. Bradley Chair in Constitutional Law.

Yesterday’s decision in Fisher v. University of Texas at Austin marks the first time Justice Anthony Kennedy has ruled in favor of a racial affirmative action policy in the twenty-eight years he has served on the Supreme Court. Unwilling to sound the death knell on racial affirmative action in higher education, Kennedy ventured down a path he had never taken before. He upheld the race-conscious component of the University of Texas at Austin’s admissions policy as satisfying the stringent strict-scrutiny standard of review. Instead of siding with rejected white applicant Abigail Fisher or ruling that affirmative action is per se unconstitutional as Fisher’s lawyers contended, Kennedy upheld the policy Fisher challenged as unconstitutional despite an oft-articulated constitutional aversion to race consciousness.

The petitioner in the case is Abigail Fisher, who is white and was rejected for admission to UT Austin over eight years ago but has since graduated from another college. The meaning of one of the most vital provisions of the U.S. Constitution – the Fourteenth Amendment’s Equal Protection Clause – was at stake in the case. Fisher II was one in a series of carefully orchestrated lawsuits designed to use the Equal Protection Clause to strike down race-conscious policies even if the policies are affirmative action policies or civil rights laws adopted for the purpose of racial inclusion. Now-deceased Justice Antonin Scalia endorsed this essentially anti-civil rights interpretation of the Equal Protection Clause. He shared in a 2009 opinion his view that Title VII’s disparate impact rule – a provision of the Civil Rights Act of 1964 that protects Americans from employment discrimination – was “at war” with the Constitution’s equality-guaranteeing Equal Protection Clause.

The man who found Abigail Fisher and convinced her to sue over her college rejection, Edward Blum, is a repeat and successful player before the Supreme Court trying to convince the Court that race-based policies to protect or include African Americans and Latinos violate the Fourteenth Amendment’s Equal Protection Clause. Until Fisher II, it seemed Blum’s interpretation of equal protection as prohibiting considering race to stop racism was closer to prevailing than its alternative. This is because the power of Kennedy’s vote has swung dangerously close to viewing race-conscious efforts to protect the interests of nonwhites as race discrimination against whites. An example of the anti-civil rights consequences of this type of reasoning is the Supreme Court’s 2013 ruling invalidating a key provision of the Voting Rights Act of 1965 (a ruling in another case conceived by Ed Blum).

This means Justice Samuel Alito is absolutely correct in declaring in the first line of his fifty-one-page dissent that “[s]omething strange has happened since our prior decision in this case.” What has happened since Fisher I is that Kennedy seems to have recognized that the Court’s equal protection jurisprudence hung in the balance in Fisher II and relied heavily on facts that had been sidelined in Fisher I.  In a fact-intensive opinion, Kennedy accurately notes that UT Austin only considered race as “a factor of a factor of a factor.” This time around, in Fisher II and in contrast to Fisher I, Kennedy notes that UT Austin’s consideration of race “may be beneficial to any UT Austin applicant – including whites and Asian-Americans.”

Other fact-focused highlights in the Kennedy majority opinion are his description of Abigail Fisher as “categorically ineligible for more than three-fourths of the slots in the incoming freshman class” because she did not graduate in the top ten percent of her high school class. The opinion explains that the Top Ten Percent Plan portion of the university’s policy was mandated by the Texas legislature and accordingly “circumscribed the University’s discretion in crafting its admissions policy.” Offering even more facts about the admissions policy, the opinion includes details about the UT Austin admissions process not mentioned in Fisher I. Kennedy characterizes the university’s consideration of race as “contextual” and “not operating as a mechanical plus factor for underrepresented minorities.”

Beyond a willingness on Kennedy’s part to engage the true facts in the Fisher case, something else changed since the Court’s prior Fisher decision. After Fisher I was decided and before his death, Justice Antonin Scalia may have done the respondent UT Austin a huge a favor by lifting the veil off of the “minority mismatch hypothesis” – a theory that has been presented by amici in this case and accepted by several members of the Court to argue that affirmative action is unconstitutional because it does not actually help the nonwhite students it admits. During the oral argument in Fisher II in December, Scalia starkly observed that Black students would do better if they attended “slower track” colleges, and he was widely criticized for spewing an essentially pro-segregationist retrograde viewpoint. The truth is that Scalia actually offered a clear and succinct articulation, minus any apologetic or empathetic tone, of the mismatch theory, an argument that has been a repeat player in racial affirmative action lawsuits for decades.

Reading yesterday’s decision, it seems Scalia’s accurate but unvarnished articulation of mismatch during the oral argument may have made the theory off limits in Fisher II. Perhaps Kennedy ruled as he did because he recognized that, irrespective of its supposed intent, the hypothesis of “mismatched Blacks” feeds a notion of Black intellectual inferiority and negative racial stereotyping that contributes to toxicity in the public discourse on race both on and off college campuses. While the actual reasoning in Kennedy’s majority opinion is the important precedent for universities seeking to employ racial affirmative action, the absence of the empirically incorrect mismatch theory from both the majority and dissents in Fisher II is worth noting.

Instead of falling prey to the trope that all race consciousness leads to the admission of less qualified African American and Latino students, Kennedy’s Fisher II opinion describes the unique details of the admissions policy challenged by Abigail Fisher – one that combines holistic review of applicants’ admissions files with a policy of automatic class rank-based admission under a “percentage plan.”   The opinion identifies the Texas percentage plan, not the university’s affirmative action policy, as having “the largest impact” on Abigail Fisher’s chances of admission.

Fisher II also includes an unexpectedly detailed and critical discussion of the Top Ten Percent Plan. Kennedy cites Justice Ruth Bader Ginsburg’s dissent from his own majority opinion in Fisher I to expose the illogic of Fisher’s embrace of percentage plans like the one mandated by Texas law when he writes: “It is race consciousness, not blindness to race, that drives such plans.”   In fact, showing that facts ruled the day in Fisher II, Kennedy enlists the historical fact that the Fifth Circuit’s invalidation of the race-conscious component of UT Austin’s admissions policy in a 1996 anti-affirmative action case, Hopwood v. Texas, was the unquestioned impetus for the percentage plan. Kennedy pegs the purpose of the plan as boosting minority enrollment and, again citing Ginsburg’s Fisher I dissent, says such “[p]ercentage plans are ‘adopted with racially segregated neighborhoods and schools front and center stage.’”

Under strict scrutiny, the government entity’s race consciousness must satisfy two prongs. The government must have both a compelling government purpose for considering race, and its use of race must be narrowly tailored to achieve that purpose. Fisher II found UT Austin to have satisfied both the compelling government interest and narrow tailoring requirements. First, without discussion, Fisher II rejects Fisher’s invitation to overrule the diversity rationale for affirmative action the Court affirmed in Grutter v. Bollinger in 2003 (first announced by Justice Lewis Powell’s 1978 opinion in Bakke v. Regents of California).

That said, Kennedy’s willingness to treat diversity as a compelling government interest is less surprising than the fact that he delved so deeply into the facts of the UT Austin affirmative action policy and liked what he saw enough to deem it narrowly tailored. This is new territory for Kennedy, who has not been satisfied with other affirmative action policies (Grutter and Gratz v. Bollinger), race-conscious efforts to avoid discrimination against nonwhites (Ricci v. DeStefano), or even race consciousness by a school district to avoid racial segregation in elementary and secondary schools (Parents Involved v. Seattle).

In rejecting Fisher’s claim that UT Austin failed to articulate its compelling interest with sufficient clarity, Kennedy offers universities clarity as to what it means to admit a “critical mass” of students and notes that, during the period when race consciousness was prohibited in UT Austin admissions, minority students “experienced feelings of loneliness and isolation.” Still, what is unclear from Kennedy’s opinion is of whom he was thinking when he wrote of “the constitutional promise of equal treatment and dignity.” Nor is it clear what he means when he says, “[f]ormalistic racial classifications may sometimes fail to capture diversity in all its dimensions” and may be used in “a divisive manner.”

If Kennedy is referring to the Equal Protection Clause’s role in protecting the rights of those who would be racially excluded absent UT Austin’s race consciousness, his equal protection jurisprudence may be taking a significant turn. I am not confident that is the case. I think it is more likely Kennedy has planted seeds in his affirmance of UT Austin’s policy that leave him open to reject future affirmative action policies as either “divisive” or infringing on “the equal treatment and dignity” of rejected white applicants. In saying it “remains an enduring challenge” to “reconcile the pursuit of diversity” with this promise, Kennedy may be revealing a continued empathy for rejected white plaintiffs, just not ones with less than stellar credentials like Abigail Fisher.

Even so, at a minimum, the Court’s opinion in Fisher II rejects the twin errors of “post-racialism” and “post-factualism” by distinguishing racial affirmative action from racial discrimination. In Fisher II, Kennedy took step one away from viewing the Equal Protection Clause as a race-blindness entitlement provision and one step toward eventually returning the Equal Protection Clause to its intended role as a rights-protecting provision.