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Why the Supreme Court upheld the University of Texas’s affirmative action programme
UNTIL last week, Justice Anthony Kennedy, a 28-year veteran on the Supreme Court bench, had never voted to uphold a race-based affirmative action policy. But on June 23rd, he did just that, writing an opinion that disappointed the supporters of Abigail Fisher (pictured), a white woman who felt she was the victim of discrimination when the University of Texas (UT) rejected her application for a place at its flagship campus in 2008. For years, Ms Fisher’s case bobbed up and down the federal courts, with two visits to the 5th circuit court of appeals and two more to the Supreme Court. Last week, her legal saga finally came to an end when the justices voted 4-3 to uphold UT’s admissions scheme and to reaffirm a principle it established nearly four decades ago: public universities in America may give limited consideration to race when admitting their student bodies.
The admissions protocol at issue in this case is complex, and, as Mr Kennedy writes, “sui generis”. For nearly two decades, UT has filled some 75% of its seats with Texas public-high-school students who finished in the top 10% of their graduating classes. This rule, adopted by the Texas legislature in 1997, was intended to increase black and Hispanic enrolment in the UT system. Eight years later, having achieved only modest success boosting diversity with this measure, UT started considering applicants’ race as one factor in the calculus for the remaining quarter of its incoming classes. Ms Fisher had no quarrel with the top 10% plan (under which she did not qualify for admission); she challenged only the university’s consideration of race for the “holistic review” admittees.
In his brief majority opinion in Fisher v UT II, Mr Kennedy carefully refuted Ms Fisher’s arguments, concluding that the admissions methodology passed constitutional muster. For many observers, this switcheroo was baffling. Justice Samuel Alito noted his incredulity in the first line of his 51-page dissenting opinion: “Something strange has happened since our prior decision in this case.” When Fisher I was decided three years ago (asking the 5th circuit to give the admissions plan a second, closer look), Mr Kennedy, without quarreling with the benefits of educational diversity, wrote that UT “must prove that the means...to attain diversity are narrowly tailored to that goal”. With regard to means, “the university receives no deference”. Fast forward from 2013 to 2016 and we now see Mr Kennedy writing that “[c]onsiderable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission”. And after surveying potential race-blind strategies for enhancing diversity (including using applicants’ socio-economic status as a factor), he writes that no “other proposals considered or discussed in the course of this litigation...have been shown to be ‘available’ and ‘workable’ means through which the university could have met its educational goals”.
This ruling by the court’s swing justice on one of the most divisive issues of the day is remarkable, but many of Mr Kennedy’s other rulings regarding racial equality show that he has been edging in this direction for some time. Four of his opinions contain seeds of what would blossom into the position animating Fisher II.
Start with Justice Kennedy’s stance in Grutter v Bollinger, the 2003 case that gave a constitutional green-light to the University of Michigan law school’s efforts to enrol a “critical mass” of underrepresented minorities. In dissenting from this ruling, Mr Kennedy embraced the position Justice Lewis Powell adopted in Regents v Bakke, the 1978 case that banned racial quotas but legitimised the use of race as a “plus factor” in pursuit of educational diversity. The problem at Michigan was that race “bec[a]me a predominant factor” in “admissions decision-making”, he wrote. But there is “no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity”. Mr Kennedy echoed a facet of this moderate view in Parents Involved v Seattle, a 2007 case challenging race-conscious assignments for public-high-school students. Though he disapproved of sorting students by the single factor of race, Mr Kennedy acknowledged that “n the real world, it is regrettable to say, [colour-blindness] cannot be a universal constitutional principle”.
Mr Kennedy’s most revealing opinion on race came in one of the most surprising rulings of 2015. Joined by Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor (another liberal, Elena Kagan, was recused), Mr Kennedy gave an expansive reading to the Fair Housing Act, a law protecting racial minorities from discrimination when they buy or rent a home. “Much progress remains to be made in our nation’s continuing struggle against racial isolation”, he wrote. Quoting his concurrence in Parents Involved, Mr Kennedy noted that “n striving to achieve our ‘historic commitment to creating an integrated society’...we must remain wary of policies that reduce homeowners to nothing more than their race”. The Fair Housing Act, he concluded, has a “continuing role in moving the nation toward a more integrated society”.
These words are a far cry from the position of the court’s more conservative members who consistently frown on any form of race consciousness in public policy. They are the sentiments of a justice who, on one hand, sees and laments America’s racial divisions and injustices but, on the other, is sceptical of explicit racial classifications to heal those rifts. In siding with the university in Fisher v UT II, Mr Kennedy gave his stamp of approval to an admissions policy that looks at race as “but a ‘factor of a factor of a factor’ in the holistic-review calculus”. This circumscribed consideration of race is consistent with the 14th amendment, in his eyes, because—in contrast to the “predominant” role of race at the Michigan law school—it is “indirect” and “contextual” and “does not operate as a mechanical plus factor for underrepresented minorities”.
Part of what made the UT’s admissions policy untroubling to Mr Kennedy, then, was what he saw as its “narrow” and individualised consideration of race. Another factor at play is found in Schuette v BAMN, a ruling Mr Kennedy authored in 2014 in which the court said the federal constitution permits Michigan voters to ban affirmative action in their state’s universities. In Schuette, Mr Kennedy waxed rhapsodic about the ability of citizens to debate and forge consensus on divisive questions. “It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds”, he wrote. The court should be loth to interfere with the people’s role in “learn[ing] from its past mistakes to discover and confront persisting biases”. Likewise, in Fisher II, Mr Kennedy portrayed “public universities, like the states themselves” as “laboratories for experimentation” where administrators should have the leeway to try out admissions policies that advance their institutions' educational missions.
Justice Kennedy’s vote in Fisher II thus reflects an evolution, not a transformation, of his thinking about race in America. He has always lamented America’s racial divisions and has never embraced a strict principle of constitutional colour-blindness. He has always acknowledged that students’ experience in university classrooms is enriched and improved in the company of diversity. And he has grown increasingly inclined to give states and universities a freer hand to find ways to bridge America’s enduring colour lines. But last week’s decision does not sanction every affirmative action programme. Mr Kennedy closed his opinion by highlighting a boundary between considerations of race that are modest, with demonstrable benefits, and those which are unnecessary or excessive. Fisher II “does not necessarily mean the university may rely on [its] policy without refinement”, he wrote. “It is the university’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies”.
Correction: An earlier version of this piece said the justices voted 5-3 in favour of the University of Texas. It was in fact 4-3; Justice Elena Kagan was recused. This has been amended
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