On Thursday, the Supreme Court affirmed the constitutionality of an affirmative action program used by the University of Texas to increase diversity among its student body. With Justice Elena Kagan recused due to her work on the case as solicitor general, the vote in the case—called Fisher v. Texas—was 4–3. Justice Anthony Kennedy authored the majority opinion, upholding the constitutionality of an affirmative action program for the very first time during his career on the bench.
Kennedy’s opinion is brief and straightforward. Under the 14th Amendment’s Equal Protection Clause, as interpreted through the court’s affirmative action cases, a race-conscious college admissions program must survive strict scrutiny—that is, it must show that its “purpose or interest is both constitutionally permissible and substantial” and that its use of racial classifications is necessary “to accomplish that purpose.” But the court adds a wrinkle to the form of strict scrutiny it applies to affirmative action programs: “The decision to pursue the educational benefits that flow from student body diversity,” Kennedy writes “is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper.” Still, schools bear the burden of demonstrating that they first attempted “available” and “workable” “race-neutral alternatives”—alternatives that failed to sufficiently promote diversity.
Joined by Justices Ginsburg, Breyer, and Sotomayor, Kennedy affirmed the UT plan as it was applied to Abigail Fisher, who brought this lawsuit with the help of anti–affirmative action groups. Kennedy notes approvingly that UT “articulated concrete and precise goals” with regard to its affirmative action program. UT “strives to provide an ‘academic environment’ that offers a ‘robust exchange of ideas, exposure to differing cultures, preparation for the challenges of an increasingly diverse workforce, and acquisition of competencies required of future leaders.’ All of these objectives, as a general matter, mirror the ‘compelling interest’ this Court has approved in its prior cases.”
Thus, UT survived strict scrutiny with its “holistic review process” for applicants, considering myriad factors of which race was just one. Did it also attempt an available race-neutral alternative? That’s iffier. UT does utilize a “Top Ten Percent Plan” to bring more minority students into its university system, offering admission to any students who graduate from a Texas high school in the Top 10 percent of their class. But there isn’t yet sufficient data to determine whether this plan has seriously increased diversity. Kennedy writes that the court could send the case back down for more fact-finding about the Top Ten Percent Plan, but “further factfinding would be limited to a narrow 3 year sample, review of which might yield little insight. … Under the circumstances of this case, then, a remand would do nothing more than prolong a suit that has already persisted for eight years and cost the parties on both sides significant resources.”
Though certainly a win for affirmative action, the Fisher ruling is fairly narrow. UT, Kennedy writes, has a “continuing obligation to satisfy the burden of strict scrutiny in light of changing circumstances,” and must engage in “periodic reassessment of the constitutionality, and efficacy, of its admissions program.” Still, “considerable deference is owed to a university in defining [its] intangible characteristics, like student body diversity, that are central to its identity and educational mission.” Both universities and the Supreme Court must always balance “the pursuit of diversity with the constitutional promise of equal treatment and dignity.”
The upshot of Fisher? Abigail Fisher loses; UT wins; and affirmative action—real, race-conscious, diversity-minded affirmative action at institutions of higher learning—lives another day.