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Argument preview: Is affirmative action about to end?

Note to readers: This blog published previously an extensive discussion — in non-legal language — of the facts and legal issues in this case.  That “Made simple” post can be read here.  This post picks up where that one left off, with a discussion of the merits briefs and analysis of the case’s prospects.


At 11 a.m. Wednesday, the Supreme Court will hold one hour of oral argument on the constitutionality of using race as a factor in deciding whether a student will be admitted to a public college or university.   Arguing for the young white Texas woman, Abigail Noel Fisher, who was denied admission to the University of Texas, will be Bert W. Rein of the Washington office of Wiley Rein LLP.  Representing the University of Texas at Austin will be Gregory G. Garre of the Washington office of Latham & Watkins LLP.  With ten minutes of time, representing the federal government in support of the university, will be U.S. Solicitor General Donald B. Verrilli, Jr.  The case will be heard by an eight-member Court, since Justice Elena Kagan has recused from the case.


As America continues its often uncomfortable conversation about the role that race does and should play in society, the Supreme Court steps back into the midst of the dialogue to address an awesomely important question: will it declare an end, constitutionally, to “affirmative action” as a public policy?   As recently as nine years ago, a Court that was quite different in its membership gave that policy an endorsement for perhaps twenty-five additional years, but that constitutional declaration is not binding on the present Justices, although they would not abandon it lightly.  It is up to them, explicitly, to decide the policy’s current constitutional fate.

It is well to remember, at the very outset, that the case of Fisher v. University of Texas will be heard and decided by eight Justices, not nine.  The newest member of the Court, Justice Elena Kagan, had a part in the case in her former role as U.S. Solicitor General, and she has explicitly taken herself out of any part in the case.  The most important point about that is that the participating Justices could wind up splitting four to four, and the result would be a simple agreement (without an opinion) with the Fifth Circuit Court decision that upheld the university’s current freshman admissions policy — and that would not set a new national precedent.   Affirmative action would still be a constitutional option.

The last time the Court dealt with a college affirmative action case was in 2003, with the decision in Grutter v. Bollinger.  It was a five-to-four decision that upheld the use of race as one factor to serve a “racial diversity” policy in selecting students for the University of Michigan Law School.   Only two Justices in that majority remain on the Court — Stephen G. Breyer and Ruth Bader Ginsburg.  Justice Sandra Day O’Connor, the author of the main opinion, has been replaced by Justice Samuel A. Alito, Jr.  Justice David H. Souter has been succeeded by Justice Sonia Sotomayor, and Justice John Paul Stevens by Justice Kagan.

Among the four dissenters then, three remain: Justices Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas.   Chief Justice John G. Roberts, Jr., has succeeded the late Chief Justice William H. Rehnquist, the other dissenter then.

If the three dissenters remain together in opposition to an admissions policy based partly on race, they could prevail only if they picked up two other votes to make the necessary five to overturn the Texas policy.  Conceivably, those votes could come from the Chief Justice and Justice Alito.  One way to gauge that prospect is to examine the voting line-up in one of the most important use-of-race cases the Court has decided since then: the 2007 decision in Parents Involved in Community Schools v. Seattle, decided by a five-to-four vote.

There, in an opinion written by Chief Justice Roberts and joined in full by Justices Alito, Scalia, and Thomas, the Court struck down voluntary, race-specific affirmative-action plans used by public school districts in Seattle and Louisville, Kentucky, to assign students to their schools.  That opinion contained this now-famous statement by Roberts: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

There were four dissenting Justices in that case — the same four who had joined with Justice O’Connor to form the majority in the Grutter decision from Michigan four years earlier — Justices Breyer and Ginsburg and then-Justices Stevens and Souter.

The deciding vote in the Seattle and Louisville case was cast by Justice Kennedy, who wrote separately even as he concluded that the two school districts had acted unconstitutionally in using what he called a “crude measure” of classifying every student on the basis of race.  He did declare, though, that education officials “may consider it a compelling interest to achieve a diverse student population.  Race may be one component of that diversity.”  Those remarks do not sound like a sentiment in favor of ending affirmative action programs altogether.

Conceivably, then, Justice Kennedy’s vote — despite his dissent in the Grutter decision — could be available to the University of Texas if it persuaded him that race was but “one component” of its goal of achieving racial “diversity” on the Austin campus.

If Kennedy were to vote with the two Justices remaining from the Grutter majority (Breyer and Ginsburg), and if that group were to pick up Justice Sotomayor’s vote, that could mean a four-to-four split if the four who voted together in the majority against the Seattle and Louisville policies were to vote against the Texas policy.

Such conjectures, of course, are most useful not as predictions but as firm indications that the vote in the Texas case is likely to be close, and the prospect of a five-Justice majority, either way, may be elusive.  It could be crucial that the lawyers for Ms. Fisher have not asked the Court directly to overrule the Grutter decision, but to strike down the Texas plan and confront Grutter‘s continuing validity only if the Court finds that Texas has satisfied the Grutter test.  The university, indeed, has contended that it adopted its plan for the partial use of race only because it believed that Grutter gave it permission to do so.

In one sense, Ms. Fisher’s challenge is not properly thought of as a complaint against affirmative action in general, but rather as a test of what “racial diversity” means in education, and whether the use of race to achieve some goal of “diversity” is constitutional under the Fourteenth Amendment’s guarantee of racial equality.  As the University of Texas uses race, her lawsuit contends, it is a form of “blatant racial balancing.”  The Grutter decision is, in fact, explicitly about “racial diversity.”   There, the majority of the Court did accept that such diversity had distinct educational benefits, in preparing students for life and work in a racially and culturally diverse world.

It is no surprise, then, that the written briefs in the Texas case engage in a wide-ranging debate over “racial diversity” and the cultural aspirations and consequences of moving toward such a goal.

Briefs on the merits

Ms. Fisher’s brief on the merits uses the standard tests for policies based on race — strict scrutiny, whether the method of using race satisfies a “compelling state interest,” and whether the specific use of race is”narrowly tailored” to serve that interest.  And it concludes that the Texas plan fails each of those tests.

On the strict scrutiny requirement, the brief argued that the Fifth Circuit Court actually abandoned that test, and substituted for it a loose, “good-faith” acceptance of the University’s claims for the academic value of promoting racial diversity not only on a university-wide basis, but down to the classroom level.   Any deference to educational judgment that is allowed under the Grutter decision, the brief argued, does not justify acceptance of a plan for “racial balancing.”

A particular target of the Fisher brief is the claimed “compelling interest” in mirroring the racial diversity of the population of Texas.  The university, it contended, pursues that goal only to make the university representative of state demographics, not to pursue diversity in order to “enhance the educational dialogue and exchange of ideas” among students of different backgrounds.  What the university is actually seeking, the brief complained, is the pursuit of racial goals “in perpetuity.”

If it is not enough to end the Texas policy that it fails to serve a “compelling interest,” Fisher’s lawyers argued, the policy fails any test of “narrow tailoring.”  Under the previously adopted race-neutral plan, which automatically admitted any Texas student who ranked in the top ten percent of his or her graduating class, the brief said, the university already had made itself “one of the most diverse public universities in the nation” without having to resort to any racial factor in a student admission index.

Turning to the university’s aspiration to achieve “racial diversity” at the classroom level, the Fisher brief said officials in Austin had set the bar for such diversity so high that the only way to achieve it would be to make each student’s race a “dominant criterion in the selection of a major,” or to skew the admissions program in such a way as to require that there be several minority students for “every small classroom.”

The brief concludes with the argument that, if the Fifth Circuit had been faithful to the Grutter precedent in upholding the Texas policy, then Grutter should either be reconsidered or at least clarified.  “If the choice is between affirming the Fifth Circuit or correcting Grutter to the extent that decision effectively abandons strict scrutiny, the Constitution requires the latter,” the brief summed up.

The university’s brief on the merits is more lavish in rhetoric than the Fisher brief, suggesting that the challenger is actually seeking not only to have the Grutter decision overruled, but also to achieve the overruling of the Court’s historic embrace of the college affirmation-action admission policy in Regents of University of California v. Bakke in 1978.   That brief also contended that the only way the Texas plan would fail a constitutional test would be if such a test were “designed simply to bar  the consideration of race altogether.”

The opening pages of the brief, in a clear indication that its authors sense that Justice Kennedy holds the key to the outcome here, contain frequent quotations from Kennedy’s writings, including his embrace of the Bakke precedent as the “correct rule.”   The only reason that Kennedy had dissented in Grutter, the university implied, was because he found the policy there “to achieve numerical goals indistinguishable from quotas.”

“In the end,” that opening section concludes, Fisher “really is just asking this Court to move the goal posts on higher education in America — and overrule its precedent going back 35 years to Bakke.”  And, it added, there is no basis for the Court to even reconsider, “much less overrule,” the Grutter decision of just nine years ago.

The body of the university brief sought repeatedly to play down the degree of reliance on race as an admissions factor.  The words “holistic,” “individualized,” and “contextual” are used with considerable frequency to make that point.  In fact, when admissions officials place applicants in “cells” for consideration, they do not even know a student’s race, the brief insisted.  Race, it argued, “is only one modest factor among many others weighed.”

The university has set no “race-based target,” and does not monitor the “racial or ethnic composition” of the entering class as the admissions process moves along, the brief said.   It disclaims a rigid reliance upon the demographic makeup of the state of Texas, although conceding that it did give “some attention” to that consideration.

To the Fisher argument that the university was achieving enough racial diversity under the “top ten percent” plan, the university brief argued that Grutter itself rejected the notion that a university had to settle for a percentage-based plan as the mode of admissions to achieve racial diversity.  Such plans lack the capacity to promote that goal, the brief argued.   If Fisher’s argument were accepted, the university contended, campus officials would shy away from embracing a percentage plan for fear that they would then be barred from considering race in a plan of “holistic” review of each applicant’s characteristics, including race.

The university fervently defended diversity’s educational benefits, arguing that this was the very interest that the Supreme Court majority had held compelling both in the Grutter decision and in the famous Bakke precedent.   The brief wound up with a strong defense of the Fifth Circuit Court against the Fisher attack, contending that the appeals court faithfully applied the strict scrutiny standard.

The amicus briefs

Following the customary pattern of a sharp build-up of amicus filings in major cases, the Fisher case has drawn more than ninety such filings, with seventy-one of them supporting the university.

The briefs supporting Fisher’s challenge come overwhelmingly from high-profile individuals long identified as opponents of affirmative action, conservative or libertarian legal advocacy organizations, and organizations whose policy agendas have long targeted affirmative action programs.   Many debate the value of “racial diversity,” arguing that it actually frustrates the aspirations of talented minority students and is not essential to success in their academic careers.  Perhaps the most energetic among these briefs is one by the American Civil Rights Union, an advocacy group formed in 1998 with prominent conservative leaders on its policy board.  That brief urged the Court to reach a decision that “racial preferences can no longer be used in any form” for admission to the University of Texas or to any of its academic activities.  “It would be most desirable,” the brief said, “to do that by overruling Grutter.” The brief made clear it was not making this point solely for the Texas campus, but for “any college or university in America.”

Among the briefs supporting the university is the federal government’s filing (discussed in this previous post), giving unqualified support to the Texas policy and its diversity rationale.  That brief stressed how limited it judges the use of race to be, noting that the index that includes a race factor fills only a comparatively few slots in each entering class.  That document also included a strong policy argument for why racial diversity in education is crucial for creating leaders in the military, business, and government in a diverse world.

The scores of briefs in support of the university range across many social sectors and cultural disciplines, including some high-profile college coaches, with many of the filings extolling the perceived benefits of teaching young people in an environment with diversity of many kinds, not just racial diversity.  Not surprising are the many briefs from colleges and universities and from student organizations, including a joint brief by the law deans of Harvard and Yale.  Military, business, and legal figures, known and unknown, have joined in to argue how diversity is vital to their futures.  Civil rights organizations and student advocacy groups are also fully represented in the filings.

A tone that runs through many of those briefs is one of anxiety, about the potential cultural losses that they perceive if the Court should take a major step toward ending the use of race in college admissions.  The Harvard and Yale law deans’ brief, for examples, warns the Court against any “retreat” from “the fundamental importance of a diverse student body,” contending that such a decision would actually cripple the admissions efforts of colleges and universities even as they use a wide-ranging, “holistic” method of filtering applicants.


It may be useful, at the start of any analysis of this case, to recall that there were several good reasons for the Court to bypass this particular case, even if some of the Justices had a keen interest in the broad topic of affirmative action in public policy.  Ms. Fisher has graduated from another university, she would never again be eligible to seek freshman admission, and she has only a $100 claim for damages (money she deposited with her failed admission papers).   In fact, the university thought the case was of such modest import that it simply declined to respond to the Fisher petition, until explicitly asked by the Court to do so.

In addition, it had to be clear, amid the Court’s deliberations on whether to take this case, that Justice Kagan would not be taking part, so there was always the risk that the case would come to a quite unsatisfactory four-to-four tie.

Thus, it appears, some Justices were eager to reach out for this case, to treat it as a vehicle of signal constitutional importance.   Indeed, the Court’s conservative Justices had reached out in just that way to take the Seattle and Louisville student assignment cases, when there was an absence of lower court disagreement about the issues there, and the two city school systems were taking steps on their own to integrate schools without being compelled to do so by court order.

Those considerations no doubt have heightened the visibility of Ms. Fisher’s challenge, and almost certainly have raised the fret level in college deans’ offices across the country, as well as in the offices of civil liberties organizations.  The notably greater inflow of amici filings on the university’s side probably reflects a good deal of worry that, indeed, the Court is on the verge of doing something major — perhaps even drastic — about the future of affirmative action in general and “racial diversity” in particular.

Having generated such a cause celebre, the Court now will be under great pressure to reach a decision on the merits so as not to let it go off on a four-to-four split.   This pressure will put a premium on attempts to find common ground.  And, of course, there would be no common ground for a decision to put a complete end to affirmative action.  If that is any Justice’s aspiration, it perhaps will have to be put aside swiftly.  No observer can count to five for such a result, because almost inevitably the fifth vote would have to come from Justice Kennedy.   His separate opinion in the Seattle-Louisville case made it quite clear that he is disinclined to take down completely the concept of “racial diversity” in education.

If there is any part of the Texas program that may be said to be truly vulnerable, it would seem to be the effort to spread “racial diversity” not just across the university campus as a whole, but down to the level of academic majors and individual classrooms.  It would perhaps be fairly easy to gather five votes to strike down that arrangement.

But what of the Grutter precedent itself?  Would the Justices who dissented there now be eager to seek its overruling, perhaps on the theory that they are within striking distance of a majority to do so?  They might wonder if there would be some cost to the institution and its reputation if it were to reach out now to scuttle Grutter.   Ms. Fisher’s lawyers have been very cautious about that as an alternative basis for decision, and that may well reflect a judgment that the Court is not ready for that historic thrust.

After tomorrow’s argument in the case, the Justices will begin what almost certainly will be months of deliberation before they decide.  But even if this comes to naught, because the absence of Justice Kagan makes resolution more difficult, the Court can look down the road for another case to come along, and there is another brewing — in, of all places, the University of Michigan.

Recommended Citation: Lyle Denniston, Argument preview: Is affirmative action about to end?, SCOTUSblog (Oct. 9, 2012, 12:02 AM),