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The Court after Scalia: Affirmative action in a changing Court

Sherrilyn A. Ifill is the president and director-counsel of the NAACP Legal Defense and Educational Fund, which filed an amicus brief in support of respondents in Fisher v. University of Texas at Austin.

How will the confirmation of a ninth Justice affect the future of diversity in higher education? After years of going back and forth to the Supreme Court over litigation in Fisher v. University of Texas at Austin and its predecessors – and decades of debating the meaning and merits of affirmative action on campuses across the nation – it might seem as if sweeping developments lie just over the horizon if and when the Court’s composition changes.

But in truth, in this particular area of civil rights, the legal landscape has already shifted significantly, even before a ninth Justice takes his or her (long overdue) seat. Last Term, the Court took a turn for the better in its case law: Justice Anthony Kennedy’s straightforward opinion in Fisher II made clear that a majority of the Justices support the commonsensical principle that diversity – along many dimensions, including race – constitutes a compelling interest and yields significant educational benefits. Kennedy wrote the four-to-three decision (Justice Elena Kagan was recused), reaffirmed years of important legal precedent about the consideration of race in college admissions, and confirmed 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.” Kennedy’s vote also reflects a significant evolution from his dissenting opinion in Grutter v. Bollinger, where he was more skeptical about race in college admissions, to a more fulsome embrace of the aspirational dimensions of his prior decisions on race.

This is an important development both doctrinally and practically. It reaffirms that racial diversity as a compelling interest is now more securely ensconced in our constitutional law. Additionally, it indicates that the Court (and the country) can start to move on from perennial attacks against the basic legitimacy of diversity – and that civil rights groups can refocus from defending baseline principles to making further progress on educational equity and integration. There are several signals that the Court is ready to turn the page. At oral argument in Fisher II, Justice Kennedy expressed exasperation with revisiting a similar issue over and over, stating “we’re just arguing the same case . . . . as if nothing had happened.” Several weeks after the decision was handed down, Justice Ruth Bader Ginsburg added that she does not “expect that we’re going to see another affirmative action case, at least in education.” Most recently, the prime backer of the Fisher litigation conceded that he will likely drop efforts to take the issue back to the Court once more.

Kennedy’s vote in Fisher II also shapes how this issue will develop with the addition of a ninth Justice. Even if a conservative were confirmed, there would still be a majority for the established precedents that support diversity in higher education, since Justice Kagan would presumably vote with the Kennedy bloc (once she is no longer recused) and sustain a five-to-four majority. Today, only three votes (Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas) are consistently antagonistic to affirmative action in any form, so the addition of a fourth vote might make things slightly more tenuous for civil rights advocates, but not materially so.

If a more progressive Justice assumed the ninth seat on the Court, it could resonate with Kennedy’s stance in several positive ways.

First, it could afford universities a greater degree of flexibility, deference, and experimentation in how they implement the Court’s precedents about diversity. Both directly, because of the net effect of having an additional vote supporting this position (six to three, or even if Kennedy occasionally peels away in a given case, there would still be a five-to-four majority). And also indirectly, because of the persuasive effect of having another Justice who might press Kennedy to maintain his super-majority on these issues for the sake of legal clarity and institutional reputation.

Second, the absence of Justice Antonin Scalia’s strident and unrelenting rhetoric (including at oral argument) on affirmative action leaves space for a more nuanced discourse about what precisely universities are attempting to accomplish in building diverse classes of students in furtherance of an educational mission. A rich and more transparent dialogue – both within universities and on the Court – is critical to defining with integrity and granularity the constitutional contours of affirmative action efforts.

Interestingly, a progressive addition to the Supreme Court might allow the Court to knit together Justice Kennedy’s decision in Fisher with the discourse he took pains to articulate in his concurrence in Parents Involved in Community Schools v. Seattle School District No. 1, the 2006 case in which the Court struck down voluntary integration efforts in K-12 education – and to re-engage questions of integrated education more broadly. In Parents Involved, although Justice Kennedy sided with the conservatives in the judgment, his concurrence reflected his understanding that while “race should not matter; the reality is that too often it does.” Kennedy insisted in that case that “[t]his Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children,” a sentiment he has echoed recently. Moreover, Kennedy encouraged educators to “continu[e] the important work of bringing together students of different racial, ethnic, and economic backgrounds,” laid out various voluntary measures that would be permissible, and suggested that officials could still “consider[] the impact a given approach might have on students of different races,” without necessarily triggering strict scrutiny. It was precisely this language just a decade ago in Parents Involved that convinced many that Justice Kennedy was unlikely to entirely jettison university affirmative action in Fisher. Today, given the very apparent and troubling fractures that still exist in our country along racial lines (fractures which Kennedy lamented in his powerful majority opinion in last year’s surprising civil rights victory in Texas Department of Housing and Community Affairs v. Inclusive Communities Project), a new moderate majority on the Court may be compelled to re-engage the constitutionality of efforts to sow the seeds of integration and diversity early on in the educational process.

Third, expanding the Court’s moderate wing could have broader benefits by addressing some of the yawning disparities in education that contribute to the need for affirmative action in the first place. A new majority could reexamine important questions about the role of courts and the constitution in addressing systemic inequalities in K-12 education. In particular, with revitalized engagement and a ninth Justice, the Supreme Court could grapple with severe inequalities in the financing of public education. For example, children in Chicago’s affluent suburban school system receive almost 300% of the funding per student as children in Chicago’s Southside ($28,639 versus $9,794). Similarly staggering disparities exist in many other districts and states and, predictably, are all too often correlated with race and yield adverse educational outcomes. In the 1973 decision of San Antonio Independent School District v. Rodriguez, the Court, by a slim five-to-four margin, rejected the constitutional significance of such glaring educational inequities. But severe imbalances in public school funding and resources undercut the salience of the Court’s preferred “race neutral” affirmative action efforts at the university level, by ensuring that students from underfinanced – often minority – school districts are underprepared to meet the rigorous admissions standards of our nation’s elite colleges and universities. In this regard, the Court’s jurisprudence about inequities in K-12 education cannot be wholly detached from the majority’s (still careful) embrace of affirmative action in university admissions.

Overall, Justice Kennedy’s pivotal vote in Fisher II marks an important inflection point for the Supreme Court. While the addition of a ninth, progressive Justice may further fortify and amplify this shift, a shift in the law has nonetheless already begun. The real question now is not simply whether affirmative action will somehow expand or be increasingly invoked in an abstract sense, but whether the Court will address the obdurate problems that originally gave rise to affirmative action. These include school districts that remain resistant to integration, the allocation of wildly disparate funding across school districts, and policies that fuel the school-to-prison pipeline. These are the all too real problems that continue to plague our country and that deserve the Court’s attention and energy once it returns to its full complement of Justices.

Recommended Citation: Sherrilyn Ifill, The Court after Scalia: Affirmative action in a changing Court, SCOTUSblog (Aug. 31, 2016, 2:07 PM),