Symposium: Moving forward from Fisher II
John Paul Schnapper-Casteras is Special Counsel for Appellate and Supreme Court Advocacy at the NAACP Legal Defense and Educational Fund in Washington, D.C. He participated in an amicus brief on behalf of the Black Student Alliance at the University of Texas at Austin, the Black Ex-students of Texas, Inc., and the NAACP Legal Defense & Educational Fund.
The Supreme Court’s decision yesterday in Fisher v. University of Texas at Austin marks a major victory for universities and students throughout the country, and reaffirms the commonsense proposition that diversity along various lines – including racial diversity – yields significant educational benefits on college campuses.
Justice Anthony Kennedy’s lucid and straightforward opinion embraces years of legal precedent underscoring that diversity on campus constitutes a compelling constitutional interest. Upon first glance, this may not seem earthshaking, but in reality, it is quite significant, since this case was geared to be part of a broader attack on the fundamental legal value of diversity. Instead, Kennedy makes clear that Grutter v. Bollinger and Fisher I stand strong as good law. This keeps in place a sensible legal framework on which universities across the country have relied, and by extension, many businesses that seek to groom and hire a diverse, dexterous workforce.
The majority opinion also confirms that “[c]onsiderable deference is owed to a university in defining  intangible characteristics, like student body diversity, that are central to its identity and educational mission.” In reaching this important conclusion, Kennedy rejected the “Catch-22” Abigail Fisher had advanced, whereby universities would simultaneously be “faulted for failing to specify [a] particular level of minority enrollment” yet also penalized for picking a magic number of students (because quotas are impermissible). Instead, the clear implication of the Court’s ruling is that universities should have some breathing room to analyze and implement an admissions program that works for them and strike a “sensitive balance” between competing considerations. Texas, the Court concluded, had done just that in developing a hybrid system that mixes quantitative assessments and holistic review, modestly considers race as “factor of a factor of a factor,” and has garnered bipartisan support from Texas officials.
Kennedy’s opinion also recognizes the important, human implications at stake. Racial isolation, he indicates, remains a real problem for students at the University of Texas – as the university’s own assessment found and its lawyers conceded, and to which our student clients in the Black Student Alliance at the University of Texas further attested. (Kennedy echoed this last Term in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, stressing that “much progress remains in our nation’s continuing struggle against racial isolation.”) Notably, the majority in Fisher II highlights the Supreme Court’s 1950 decision in Sweatt v. Painter, which desegregated the University of Texas’s law school. (Disclosure: the NAACP LDF, my employer, litigated the case.) Sweatt, Kennedy points out, makes clear that a “university is in large part defined by those intangible ‘qualities which are incapable of objective measurement but which make for greatness.’” He’s precisely right: Universities do more than simply collect and churn out standardized test scores – they groom the next generation of leaders, foster critical thinking, and spark debate and innovation. Using raw numbers alone, Kennedy explains, would exclude talented and worthy applicants, like the “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 the top decile of her class.” These thoughtful examples reflect an appreciation for real-world struggles and dynamics, especially after deep rifts along racial lines have resurfaced in recent years, from Ferguson to Baltimore.
Finally, the majority opinion is notable for what it does not do. It does not revamp the basic compliance regime for universities. (Of course, universities must take seriously the Court’s preexisting requirements to carefully study and continually monitor how admissions policies are working in practice – but that is not really new.) The decision does not suggest Texas’s Top Ten Percent Plan is the only, or even a superior way to conduct admissions, but rather holds that other universities and states “can serve as ‘laboratories for experimentation.’” Indeed, Kennedy invokes Justice Ruth Bader Ginsburg’s prior dissent, explaining why percentage plans have their own limitations and potentially “perverse incentive[s].” Moreover, the majority opinion does not try to create any expectation that pro-diversity policies will “no longer be necessary” “25 years from now” – a quote from Grutter v. Bollinger which has become more of a punchline than a guideline. Nor did Kennedy, in his clear-cut, twenty-page opinion, feel much need to respond to Justice Samuel Alito’s vehement, fifty-one-page dissent.
The bottom line is not simply that Kennedy has garnered a majority to sustain diversity, although that is certainly welcome news. It is that there are now only three votes on the Court to countenance perennial claims like Ms. Fisher’s. So yesterday’s validation of existing doctrine should begin to wind down a protracted debate about whether precedents governing diversity are still good law – and turn the page on a broader assault against the legitimacy of diversity writ large. Yesterday’s decision roundly reaffirms what we already know, that diversity – across many dimensions, including race – makes us all stronger and allows us to move forward.