Commentary: Fisher’s big news: No big news
Olatunde Johnson is a professor of law at Columbia University Law School.
In its ruling today in Fisher v. University of Texas at Austin, the Court preserved Grutter’s core holding that “obtaining the educational benefits of ‘student body diversity is a compelling state interest that can justify the use of race in university admissions.’” One might have predicted that Justice Kennedy would write the majority opinion. But I doubt that anyone predicted the seven-to-one line-up (with Justice Kagan recused and Justice Ginsburg as the sole dissenter) or that there would so little in any of the Court’s opinions to surprise us. Yet this near unanimity and the lack of significant change in higher education affirmative action law is precisely what might be noteworthy about Fisher. Along these lines, two aspects of the Court’s decision are worth exploring: the relative brevity of the majority opinion and the significance of the remand.
First, the majority decision is rather short. Since the case was argued in October, one would be forgiven for thinking that the Justices were busy writing long, furious, separate opinions. There was much to fuel that speculation. Justice Kennedy, the assumed swing vote because of his separate concurrence in Parents Involved , joined the dissent in Grutter v. Bollinger. And in oral arguments in Fisher, several key Justices seemed skeptical of the University of Texas’s program. In the end, however, the Fisher Court had little new to say, because it reaffirmed Grutter and its predecessor Bakke.
To be sure Justice Kennedy made it clear that Grutter and Bakke were taken as “given for purposes of deciding this case.” And Justice Scalia, too, in his separate concurrence pointed out that Fisher did not ask the Court to overrule Grutter’s holding that diversity was a compelling interest. Still, Kennedy’s opinion was remarkably devoid of any winks or nods, missing any sly invitations to revisit the Grutter holding. Nor did the majority opinion bite at Justice Thomas’s extensive separate opinion taking down the constitutionality of affirmative action. Instead, Justice Kennedy repeatedly quoted the language of Bakke and Grutter, thus reminding us of the broad educational and social values served by diversity in higher education. Indeed, Justice Kennedy’s repeated citing of the 1978 decision in Bakke had the effect of reminding us of just how long and firmly rooted is this core notion of diversity. In this way, the opinion seems a nod to the values of stare decisis and continuity.
The second significant aspect of the decision is that it remanded the case to the Fifth Circuit for that court to apply what the Supreme Court deemed the proper strict scrutiny standard. This is the crux of today’s decision and the aspect that will be most closely dissected in the months to come. The Fifth Circuit, in evaluating whether the University of Texas’s affirmative action program was narrowly tailored to serve the compelling interest in diversity stated that it would “presume the University acted in good faith” and would not “second-guess the merits” of the University’s decision. According to the Supreme Court, this inquiry was not sufficiently searching. Citing Grutter, the majority held that while deference was warranted to a university’s determination that diversity was a compelling interest, the narrow tailoring aspect of strict scrutiny requires a “court to examine with care, and not defer to a university’s ‘serious, good faith consideration of workable race-neutral alternatives.’” A court may not simply rely on a “good faith” assertion by the university that it needed to consider race as a factor in admissions to promote diversity. Rather, “strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.” Reversing the adage that strict scrutiny in the affirmative action context, unlike in other race-conscious contexts, “must not be ‘strict in theory, but fatal in fact,’” the Court cautions here that “[s]trict scrutiny must not be strict in theory but feeble in fact.”
The Court does not suggest in this aspect of the opinion that it is announcing a new standard. Much of the Court’s language on strict scrutiny is lifted from Grutter as well as the Court’s decisions related to affirmative action in government contacting. Moreover, unlike in Ricci, the Court did not take it upon itself to apply the standard itself – declining to find, for instance, that the Texas program did not satisfy strict scrutiny. Still, questions may linger about this aspect of the ruling. Justice Ginsburg in her dissent argued that the Court’s application of strict scrutiny was in fact too strict. The University had designed its affirmative action program heeding Grutter’s admonition of flexible, individualized consideration of race, subject to periodic review — as Justice Ginsburg emphasized in her dissent, a “‘factor of a factor of a factor of a factor’ in the calculus.” And, the university had arrived at its decision to consider race and ethnicity in admissions after conducting an internal study showing lack of significant enrollment of minorities in certain classes.
It is unclear how the lower court will resolve the strict scrutiny question on remand. The Court provides little concrete guidance on what specifically might satisfy strict scrutiny. This may be consistent again with the brevity of the opinion and the Court’s suggestion that it is merely applying established precedent. But what the lower court does on remand will determine what strict scrutiny looks like in practice.
My own view is that this aspect of the Fisher opinion rests largely on the particularities of the Texas case. The posture in which the Texas affirmative action case arises is one in which an apparently “workable race-neutral alternative” loomed – the famous Texas Top Ten Percent Plan, which grants automatic admission to any Texas state college to all Texas students in the top ten percent of their high school class. Justice Ginsburg rightly points out that the program’s success in achieving racial diversity depends on segregated conditions in K-12 education, thereby making the Texas Top Ten Percent Plan race neutral in name only. But the presence of this program may have shaped the Court’s resolution of the Fisher case. The implications of this aspect of the decision for other jurisdictions without such a plan, and for professional schools, is thus less clear.
There is much more to say on the policy implications of the decision at a time of increasing racial and ethnic diversity among school-aged children and young people, and at a juncture in which the United States faces critical challenges in providing the quality education necessary to ensure true inclusion, train future leaders, and promote economic growth. But at the end of this day, the Court’s opinion preserves the essential architecture on which affirmative action depends.