Online Fisher symposium: The Court needs to explain better why using race in a softer, less visible, way is preferable

The following contribution to our Fisher symposium comes from Vikram Amar, Associate Dean for Academic Affairs and Professor of Law at UC Davis School of Law.

I.     What the Court will probably do

To the extent that the Court reaches the merits, everyone expects Justice Kennedy to be the pivotal vote in Fisher, and everyone also expects Justice Kennedy to reverse the Fifth Circuit opinion which upheld UT’s admissions policy, on the strength of the Court’s 2003 decision n Grutter v. Bollinger.  What people do not seem sure of, however, is how broad or narrow Justice Kennedy’s key middle position in this case will be. I see three possibilities. The narrowest option would be to chide the Fifth Circuit for having deferred to the university on the question of whether consideration of each applicant’s race really was necessary to accomplish diversity, and simply remand to the Fifth Circuit for application of a “true” strict scrutiny.  This course of action would be defensible, and draws some support from what the Court did in the nineties in Adarand Constructors Inc. v. Pena (in which the Court held that strict scrutiny applies to all race-based affirmative action plans — even those undertaken by the federal government — but declined to apply that scrutiny in the first instance to the highway set-aside program at issue).  But this first possibility seems to me unlikely given the Court’s more recent tendency to announce, and then apply in the case at hand, rigorous tests in the affirmative action realm, as exemplified by Justice Kennedy’s own majority opinion in Ricci v. DeStefano.

The broadest option – holding that race may never be used at the individualized admission stage — is the one conservatives most hope for, but it is also the least likely to come to pass. For starters, notwithstanding language in Justice Kennedy’s concurrence in Parents Involved in Community Schools v. Seattle School District No. 1 that flirted with a ban on individualized race consideration, and his separate writing in City of Richmond v. J.A. Croson, he has refused to disclaim Grutter’s professed approach altogether. Moreover, Justice Kennedy rarely likes to say never and decide bright-line-rule questions he doesn’t need to in constitutional cases, and affirmative-action cases seem no exception. Finally, Justice Kennedy explicitly said in his Grutter dissent that “[t]here is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity . . . [provided] each applicant receives individual consideration and that race does not become a predominant factor in admissions decision making.” That sounds a lot like acceptance of Justice Powell’s approach in Regents of the University of California v. Bakke, so long as courts ensure that a meaningful substantive strict scrutiny approach is rigorously followed.

So the most likely Fisher result is something in between these two other options, with Justice Kennedy holding that strict scrutiny must be applied to UT’s plan and applying his view of strict scrutiny at the Supreme Court level. The window for race-based affirmative action in higher education will be narrowed, but left ever-so-slightly open.

That brings us to what Justice Kennedy is likely to say in explaining why UT’s plan does not survive true strict scrutiny.  The reasoning Justice Kennedy will most likely embrace centers on the existence of the “Top Ten Percent” plan. Even if a Harvard-style “plus” plan (of the kind that Justice Powell described in Bakke and that the Court upheld in Grutter) can sometimes pass constitutional muster because it is necessary to accomplish educational diversity, it cannot be considered necessary – and thus constitutionally permissible – if a “percentage plan” like Texas’s is already operating and accomplishing results that exhibit some meaningful diversity. This move would be most consistent with Justice Kennedy’s key concurrence in Parents Involved permitting, if not encouraging, the racial identity of groups to be considered when deciding what criteria of geographical assignment and programming should be (akin to deciding what the admissions criteria at UT should be), but distinguishing that from the consideration of the race of individuals when the criteria are applied.

Justice Kennedy need not definitively affirm or disclaim his prior suggestions that race of individuals might sometimes be taken into account because the percentage plan’s modicum of success in achieving diversity makes that question unnecessary to answer. Whether the opinion will require all states to experiment with percentage plans before ever making individualized use of  race, or will simply indicate that those states which do have percentage plans that are working reasonably well have no occasion to do anything else, is hard to guess. But either way, Texas can’t make use of race in the way it has tried.

II.     What I hope the Court discusses in doing it

All of this tees up a crucial but not fully answered question: Why is a percentage plan in which the racial demographics of groups are taken into account in deciding the criteria of admission constitutionally superior to a Harvard-style plus added at the moment when those criteria are applied?

One answer is that the role race has played in percentage plans may be less visible; these plans appear to use race in a softer, less in-your-face, manner. In this respect, I have the same reaction when comparing percentage plans to individualized “plus” plans that I did when I reflected on Justice Powell’s distinction in Bakke between legitimate “plus plans” and impermissible quotas. Why was the Harvard plan (that used “pluses”) constitutionally superior to UC Davis’s (which used a quota to admit medical students)?  Maybe the best answer (and I’m not saying I find it satisfying as a constitutional matter) is that elevating each individual’s race and considering it sui generis makes it too salient and thus too contentious. A concern with how the use of race makes the affected people feel is certainly understandable, such that constitutionality and gentility seem to be related. Race can figure in the mix, but we must blend it in politely, pursuant to some unwritten etiquette that encourages us not to become too visibly absorbed, or even interested, in the necessary evil that is racial redress.

The problem with this kind of reasoning is that the rules and systems of manners and politeness don’t derive from or demand analytic coherence and consistency the way rules and systems of constitutional doctrines generally do and should. As a result, there is a tremendously underexplained, sometimes seemingly arbitrary quality to the Court’s work product in this realm. In Bakke, for example, Justice Powell never really addresses Justice Brennan’s argument that a race-based program’s inscrutability to the public should not count in favor of its constitutionality. Similarly, in Parents Involved, Justice Kennedy admits, as other Justices have as well, that considering the racial demographics of the groups affected by decisions about where and how to assign students “is race conscious” but “is quite a different matter” than “assigning to each student a personal designation according to [a] system of individual racial classifications, and the legal analysis changes accordingly.” But that’s an intuition or feel (however widely shared) more than an argument; the “is quite a different matter” crux is stated without explanation or defense.

If the Court’s jurisprudence in racial affirmative action cases is to attain intellectual credibility and respect, the Court is going to have to provide a robust explanation – one grounded in constitutional text, history or structure — that offers more than simply the gentility instincts of particular swing Justices.