The majority ruling was written by Justice Kennedy (for Breyer, Ginsburg & Sotomayor). Justice Thomas wrote a one-page dissent in which he opined that he would have overturned Grutter v. Bollinger (2003, and a much longer dissent by Alito (for Roberts & Thomas) was more than twice as long as Kennedy’s ruling. It was also considerably more acerbic than your average dissent.
Most legal observers were surprised, if not shocked that Kennedy not only joined the majority but wrote the Court’s ruling. Those observers were correct in noting that this was the first time Kennedy supported any form of affirmative action (AA), and that he was in the dissent in the most recent rulings involving strict scrutiny (e.g., a compelling government interest addressed by a narrowly tailored solution) as applied to educational issues (see. Grutter v. Bollinger & Gratz v. Bollinger (2003), and Parents Involved in Community Schools v. Seattle School Dist. No. 1(2007). In my opinion, Kennedy’s ruling in Fisher is not surprising in view of the reasons why he dissented in those cases.
In Grutter, a key ruling was whether Regents v. Bakke (1978) was good law, and whether the University of Michigan’s law school “critical mass” admissions plan was faithful to that ruling. In Bakke, Justice Powell ruled that diversity in medical school admissions was a compelling government interest, but the quota plan used by the California Davis program was not narrowly tailored (16 seats reserved for minorities). However, Powell suggested that the “Harvard Plan”, which used a point system and gave a point for minority representation, would be narrowly tailored. In Grutter, a 5-4 ruling written by Justice O’Connor, the majority favored the “critical mass” plan on both compelling interest and narrow tailoring. For his part, Justice Kennedy, in a separate dissent, agreed that Powell’s ruling in Bakke was good law and that diversity is a compelling interest. However, he did not believe that the Michigan plan was faithful to Powell’s concept of narrow tailoring.
Gratz was a much easier ruling for the Court. The vote was 7-2, the only dissenters being Ginsburg and Souter. The reasoning here was that the Michigan undergraduate admissions plan allowed 20 points for minority representation in an all-points admission process (requiring 200 points for admission). This was seen, for all intents and purposes, as a quota system, much like the one struck down by Powell in Bakke. Thus, that Kennedy joined the majority ruling here is no big deal as three of the five in the majority in Grutter also did so.
That leaves the Parents case, seen by many as the most critical in the series to that point. It was critical because four justices (Alito, Roberts, Scalia & Thomas) wanted to reverse on diversity as a compelling interest, but it was Kennedy, the fifth vote in rejecting the plans in this case, that literally stopped them. He opined that diversity is a compelling interest, but the plans were not narrowly tailored. But there was more. Kennedy then outlined plans that would be narrowly tailored if implemented. In short, there were preexisting reasons for believing a case that he could support on both prongs of the strict scrutiny test would arise, and Fisher was that case. That’s my way of saying that it was no surprise to me.
The facts of the case in Fisher are as follows. After losing an AA case in Hopwood v. Texas (1996) due to its quota properties, the Texas Legislature implemented a “Top Ten Percent Law” in 1997 permitting automatic admission to any Texas state university for seniors graduating in the top 10% of their class. This did increase the percentage of blacks and Hispanics at the University of Texas at Austin (UTA). Then, after Grutter UTA commissioned two studies to determine if they had a “critical mass” of underrepresented minority students, a concept supported in the Grutter ruling. The gist of these studies was reported in an alert dated 3/12/12. UTA concluded it did not have a critical mass and took a “holistic” approach with different rules for (1) Texas residents, (2) domestic non-Texas residents, and (3) international students. As it turned out, the 10% rule accounted for only 75% of new students, which is not surprising since it would not be expected that the top 10% would all chose UTA.
Texas residents are allotted 90% of available seats based on a two-tiered system in which (1) the 10% law is applied first, and remaining seats filled based on Academic and Personal Achievement indexes. Admissions for domestic non-Texas residents and international students are based entirely on the Academic Index (AI – standardized scores + class rank) and the Personal Achievement Index (PAI – composite of scores from two essays assessing leadership qualities, extracurricular activities, honors and awards, work experience, community service, and special circumstances). The special circumstance were applicants from poor families, from homes in which a language other than English was customarily spoken, and applicants from single-parent households. Basically, this plan was race-neutral, but it disproportionately benefitted minority students.
The district court granted summary judgment to UTA and the 5th Circuit affirmed on grounds that UTA had a “good faith” belief that the holist program was necessary to promote diversity. The Supreme Court then, in what was viewed as a cop-out, ruled that “good faith” was not the proper standard, and remanded to the 5th Circuit to evaluate the plan via strict scrutiny. Without further remand to the district court, the 5th Circuit ruled that the plan passed both prongs of the strict security test, thus returning the case to the Supreme Court, which agreed with the 5th Circuit in the aforementioned 4-3 vote.
Justice Kennedy’s majority ruling was that the holistic review process satisfied both prongs of the strict scrutiny test because of three major factors: (1) UTA did not seek to enroll a specific number of minorities; (2) prior race-neutral policies after the Hopwood ruling had not been successful in promoting sufficient racial diversity; and (3) uncapping the 10% rule would not work to promote diversity.
I could not begin in a blog that is already very long to capture the entirety of Justice Alito’s dissent. But here are some choice quotes:
UT's race-conscious admissions program cannot satisfy strict scrutiny. UT says that the program furthers its interest in the educational benefits of diversity, but it has failed to define that interest with any clarity or to demonstrate that its program is narrowly tailored to achieve that or any other particular interest. By accepting UT's rationales as sufficient to meet its burden, the majority licenses UT's perverse assumptions about different groups of minority students -- the precise assumptions strict scrutiny is supposed to stamp out.
UT has failed to define its interest in using racial preferences with clarity. As a result, the narrow tailoring inquiry is impossible, and UT cannot satisfy strict scrutiny.
To the extent that UT is pursuing parity with Texas demographics, that is nothing more than "outright racial balancing," which this Court has time and again held "patently unconstitutional.
And the strongest one (in my opinion):
What is at stake is whether university administrators may justify systematic racial discrimination simply by asserting that such discrimination is necessary to achieve "the educational benefits of diversity," without explaining -- much less proving -- why the discrimination is needed or how the discriminatory plan is well crafted to serve its objectives. Even though UT has never provided any coherent explanation for its asserted need to discriminate on the basis of race, and even though UT's position relies on a series of unsupported and noxious racial assumptions, the majority concludes that UT has met its heavy burden. This conclusion is remarkable -- and remarkably wrong.
As for Justice Thomas, he opined:
I write separately to reaffirm that "a State's use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause." …. "The Constitution abhors classifications based on race because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all…. That constitutional imperative does not change in the face of a "faddish theor[y]" that racial discrimination may produce "educational benefits." Id., at ___, ___, …. The Court was wrong to hold otherwise in Grutter v. Bollinger, 539 U. S. 306, 343, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003). I would overrule Grutter and reverse the Fifth Circuit's judgment.
I think I’ve said enough …. For now.
By Art Gutman, Ph.D., Professor, Florida Institute of Technology
