The Affirmative Action Surprise

United States Supreme Court Justice Anthony Kennedy, March 23, 2015

Pete Marovich/Bloomberg/Getty Images

United States Supreme Court Justice Anthony Kennedy, March 23, 2015

With the continued vacancy of Antonin Scalia’s seat, this year’s Supreme Court term has been less consequential than many, and certainly less than it might have been. The Court has avoided deciding the merits of some controversial cases, such as a religious freedom challenge to Obamacare, which it returned to the lower courts in hopes of a settlement. It has accepted fewer new cases for review. And it has divided 4-4 on others, leaving lower court decisions in place but making no law (and issuing only a cursory statement that no majority opinion could be reached)—as it did Thursday in a challenge to President Obama’s immigration plan. That particular decision was consequential indeed for the nearly five million undocumented immigrants to whom Obama sought to extend relief, as it allowed a 2-1 vote in a court of appeals to block one of the president’s most important initiatives. As former solicitor general Walter Dellinger commented, “seldom have the hopes of so many been crushed by so few words.”

But on the long-disputed matter of affirmative action, the Court on Thursday issued a very important—and surprising—decision, when it upheld the University of Texas’s program. Writing for the 4-3 majority was Justice Anthony Kennedy, long the Court’s swing vote, and previously a consistent opponent of affirmative action. The outcome in Fisher v. University of Texas is surprising not just because of Kennedy’s change of mind, but for what it says about the Court’s equal protection doctrine. The decision means that affirmative action will survive, and that a solid majority of the Court’s justices, even without the justice who will eventually fill Scalia’s seat, understand the importance of considering race in admitting students to our nation’s colleges.

The decision is all the more striking since, on matters of race, the Supreme Court and the real world have often seemed to inhabit separate spheres. Our newspapers, smartphones, and nightly news programs are filled with accounts of young black men being abused or killed by police—who are then often difficult to prosecute. Our prison populations are disproportionately dominated by black and Hispanic men, often serving unconscionably long sentences for nonviolent offenses. And students on college campuses across the nation have been protesting the underrepresentation of minorities among faculty and the student body, and the racial isolation that results. Yet a majority of the Supreme Court has been deeply committed to an abstract vision of color-blindness, deeming it just as suspect to consider race in order to right entrenched wrongs as to subordinate minority groups. Nowhere has the divide between the Court’s view and that of most of the rest of the world been more evident than with respect to affirmative action in higher education. Here, the Court has long insisted that any use of race in the admissions process must satisfy the same “strict scrutiny” that applied to programs that excluded blacks from white schools, swimming pools, and railroad cars, as if there is no moral difference between seeking to aid and to harm disadvantaged groups.

Applying its formalistic equal protection doctrine, the Court has previously struck down not only the use of racial quotas, but virtually any approach that gives a concrete value to an applicant’s minority group status. It has rejected the argument that affirmative action is justified to redress the lingering effects of past and present societal discrimination. And the one previous time, in 2003, that the Court approved what it deemed a “narrowly tailored” effort to achieve diversity, it did so over Justice Kennedy’s impassioned dissent, and warned that in twenty-five years, its patience for even such narrowly tailored programs would be at an end. In view of this record, many thought the University of Texas’s program was doomed. 

But when abstract theory confronted the complications of reality, Kennedy reconsidered. To his credit, he has done so before. (Most famously, along with Justice Sandra Day O’Connor, he voted in 1992 to reaffirm Roe v. Wade as an important protection for women’s autonomy, after having often criticized the decision harshly in prior dissents—much to the dismay of his four conservative colleagues who wanted to overturn Roe altogether.)

The question presented by the Texas case was whether, having achieved some minority representation through the use of a “Top Ten Percent Plan” that guaranteed admission to any student who finished in the top 10 percent of his or her high school class, the university could consider race as a modest factor in a holistic review of those applicants who did not obtain admission through high school class rank. Race was considered along with many other attributes, including extracurricular activities, athletic or musical prowess, socioeconomic status, and family background. The lower courts had upheld the program, but in 2013, the Supreme Court, with Kennedy writing, vacated that opinion, finding that the court of appeals had been too deferential to the university.


In concluding Thursday that the Constitution could tolerate the Texas program after all, Justice Kennedy brought his own jurisprudence—and that of the Court—a little closer to the real world. As a formal matter, the Court continued to apply the same “strict scrutiny” that it applies to laws that discriminate against blacks and Hispanics on the basis of race. But in its result, the Court acknowledges a fundamental distinction between such actions. The majority reasoned that as long as the university used no racial quotas or goals, had tried and found wanting race-neutral means to achieve diversity, and gave race only modest consideration as a “factor of a factor of a factor” in a holistic review of an applicant’s qualifications, race could be taken into account to achieve the benefits of diversity. And it declared that while the university was compelled to demonstrate that consideration of race was necessary, it did not have to identify its goals with numerical precision.

While the decision purports to apply a test that treats all consideration of race with equal suspicion, it is in fact inconceivable that had Texas adopted a plan to exclude minority groups on the basis of their race, by making majority race a “factor of a factor of a factor” to increase white enrollment, the plan would ever survive review. And for good reason: where the racial majority uses race to benefit its own members, there is every reason to be extremely suspicious. But where the majority considers race to help rather than hurt a minority applicant, it may be justified if necessary to further “diversity.” Because increasing enrollment of the majority would not increase diversity, the diversity rationale recognizes that aiding minorities ought to be less suspect than using race to exclude them. 

Justice Alito, dissenting, complained that the University of Texas did not offer a sufficiently precise definition of “diversity” as its goal. In his view, one cannot apply “strict scrutiny,” which requires “narrow tailoring” of a state’s means to its compelling end, unless the end is defined with specificity. But as Justice Kennedy correctly responded, the Court’s own doctrine precludes the use of numerical goals, and in any event the “educational benefits of diversity” cannot be reduced to a number or percentage. They require contextual consideration of a wide range of attributes, including but in no way limited to race. 

In any event, Justice Alito’s objection that it is not possible to apply strict scrutiny without an objectively measurable goal contradicts his own vote—and that of his fellow dissenters in Fisher, Thomas and Roberts—in the 2010 case of Holder v. Humanitarian Law Project. In that case, which I argued, the Court, in an opinion written by Roberts and joined by Alito, Thomas, Kennedy, Stevens, and Scalia used the same standard of “strict scrutiny” to uphold a law that made it a crime to advocate for peace and human rights in conjunction with a group labeled “terrorist.” It did so on broad and vague speculations that if one advocated for human rights on behalf of such a group, it might burnish the group’s “legitimacy,” which might in turn allow it to find more support, which might in turn be used for terrorism. The Court required no evidence to support this speculation, nor any concrete or measurable definition of “legitimacy,” yet it deemed strict scrutiny satisfied. Thus, Alito and his fellow dissenters in Fisher would impose a higher burden to justify a program designed to aid African-Americans and Hispanics than to a scheme that criminalized human rights advocacy. 

Justice Kennedy’s Fisher decision reflects a more grounded view of society as it is, a willingness to adjust the purely formal elements of abstract doctrine to a world in which race continues to matter, and in which the structural inequities that have been baked into the American system of education since the days of slavery and Jim Crow persist, and would be worse if programs like Texas’s didn’t exist. We should have no illusion that the modest affirmative action practiced today is sufficient to remedy the wrongs that African-Americans and Hispanics have historically suffered and continue to suffer. But it is part of the solution, not part of the problem. Justice Kennedy’s willingness to rethink his own prior positions allowed him to recognize that truth. 

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