Fisher Commentary: Everyone wins, everyone loses

Justice Kennedy’s opinion in Fisher v. University of Texas at Austin demonstrates as well as anything else could that the Supreme Court should never have granted certiorari in this case.  There were many reasons not to have taken it: Justice Elena Kagan was recused, so the decision would be reached by only an eight-person Court; Abigail Fisher had already graduated from college and did not, in any event, appear to have the academic markers necessary for admission to UT in the first place; and the question presented in the case assumed the continued validity of the Court’s decision in Grutter v. Bollinger, making the dispute a very narrow question of application of settled law to specific facts.  This would have been an easy case to pass on.

So when the Court, after holding the opinion over for several conferences, did grant certiorari, it was entirely reasonable for Court watchers to imagine that the Justices took the case because some number (most likely four) of them were interested in using the dispute as an opportunity to overturn Grutter’s 2003 decision identifying diversity in higher education as a compelling state interest.  The long wait between oral argument and the opinion’s release added fuel to this speculation.  Surely the opinion would have huge legal significance if it was taking the Justices this long to perfect their language.

Instead of a major reversal of recent precedent, or a sharply divided opinion with many passionate separate decisions, we have Fisher.  The decision is in some sense a victory for supporters of affirmative action.  After all, the Court affirmed diversity in higher education as a compelling state interest, observing that “[t]he attainment of a diverse student body… serves values beyond race alone, including enhanced class-room dialogue and the lessening of racial isolation and stereotypes.” It is also a victory for opponents of affirmative action.  The opinion firmly rejects the notion that racial classifications designed to increase opportunity for or redress discrimination against racial minorities can be treated differently from those classifications intended to exclude or oppress minorities and it is sharply critical of the lower courts for excessive deference to the University’s explanation of its goals and their justification.

While both supporters and critics of affirmative action can find something to praise in this opinion, the group that really cannot take comfort in the opinion are those who craft and administer admissions policies for college and universities.  Deference is a centerpiece of the opinion, and yet one on which the compromises apparent in the opinion leave a great deal of uncertainty.  Universities are entitled to exercise professional judgment – and are entitled to deference in exercise of that judgment – about the need for diversity to achieve their educational mission.  That deference, however, is not “complete.”  Universities are not free to point to racial balance as the diversity target they seek.  A challenge going forward, then, is how universities can and should define their diversity goals.

But the greater challenge will be how universities can achieve those goals.   Fisher makes clear that courts must not defer to a University’s judgment on how to achieve diversity.  A reviewing court must assure itself that the University’s means are narrowly tailored to the goal of achieving diversity.  One piece of this analysis is that a court must verify that the use of race is “necessary” “to achieve the educational benefits of diversity.”

Perhaps the most telling paragraph in the Court’s opinion is at the very end of its factual description.  The Court observes that the University of Texas’s entering class for the “last year … that did not consider race” (but that did use the Top Ten Percent plan) was 4.5% African-American and 16.9% Hispanic.  In 1996, when UT did consider race (but did not use the Top Ten Percent plan), the class was 4.1% African- American and 14.5% Hispanic.  These facts open the door to an argument that the use of race in admissions did no more to further the University’s diversity goals than race-neutral methods.   This lack of apparent “effectiveness” of the race-conscious approach to increase diversity calls into question whether the University can show its race-conscious approach is “necessary” to achieve diversity.  (This will likely be the centerpiece of the arguments on remand and the numbers are in fact more complicated than those selectively cited by the Court.  UT may well be able to meet its burden, but Justice Kennedy’s opinion certainly points the way for the argument that the University cannot demonstrate necessity.)

Another uncertainty university officials now face is that the admissions process is not one that ever reflects perfect precision to achieve narrow goals.  Although the Court pays lip service to the general expertise of higher education officials in assessing who should be admitted to study, the Court at the same time says that any admissions policy, once challenged, must be demonstrably specific and narrowly focused to achieve the particular amount of diversity that a school can demonstrate is the correct amount to achieve the educational benefits attendant with diversity.

Selecting a large diverse class of students is not akin to casting individuals in specific roles in a play.  Admissions officers face huge numbers of applicants and great uncertainty about acceptances, as a quick look at the UT numbers demonstrates.  In 2008, UT received 29,501 applications.  The University accepted 12,843 students, and only 6,715 of those admits actually enrolled.  This enrollment reality — that you only net fifty percent of who you admit – creates difficulties for a university that must explain how its admissions policy, designed to achieve a wide range of goals with a large number of applicants, is narrowly tailored to those general goals.

Those general goals are not ones universities can be expected to abandon, as Justice Ginsburg’s dissenting opinion recognizes.  Universities wish to – and should – reflect the broad diversity of our society.  That diversity is reflected in talent, in educational background, in socioeconomic status, in racial identity, in intellectual orientation.  The best learning environments – those that foster the richest and most expansive conversations – are diverse on all of these fronts.  University administrators know this, and they will continue to strive for that broad diversity.  Universities will not, and should not, stop caring about racial diversity.

It may be that the Court’s conservative wing overplayed its hand by taking this case.  Grutter’s central holding – that diversity in higher education is a compelling state interest – has been affirmed.  The Fisher decision does NOT call into question the admissions policies used by schools all over the country.  It does even not conclude that UT’s policies run afoul of the Constitution.  It simply rearticulates the strict scrutiny standard as applied to education policy, while still accepting that racial diversity is a value.  If the Court reaches out to reconsider that ruling in the next few years, the activism of the Court’s conservative wing will be hard to overlook.