Competing Interpretations of Fisher

Commentary on today’s Supreme Court decision in Fisher v. University of Texas seems to be divided between those who believe, as I do, that the ruling tightens judicial scrutiny of university affirmative action plans, and those who contend it will make no real difference.

Amy Howe of SCOTUSblog suggests that “affirmative action survives at least in theory…, but will be far more difficult to implement in practice.” Bill Mears of CNN reaches a similar conclusion, and affirmative action opponent Roger Clegg claims that the ruling will be “helpful” to litigators seeking to strike down racial preferences. By contrast, Gerard Magliocca believes that Fisher “said nothing,” and UC Irvine Law School Dean Erwin Chemerinsky concludes that it just reaffirms Grutter and other previous decisions.

I think the latter interpretation of Fisher is difficult to defend. It’s true that the Court did not hold that all affirmative action for diversity purposes is unconstitutional, and claimed that its decision was completely consistent with Grutter. On the other hand, as I explained previously, it ruled that affirmative action plans must be scrutinized by courts without giving any deference at all to the university’s judgment, and should be judged by the same standards as racial preferences in non-university settings (where the Court tends to be very tough). This is a major change from Grutter’s extension of a substantial “degree of deference” to university’s expertise. Essentially, in the opinion he wrote today, Justice Anthony Kennedy adopts the legal rule advocated in his Grutter dissent, where he took the majority to task for its “perfunctory” review of the University of Michigan Law School’s affirmative action program, and for “deferring to the law school’s choice of minority admissions programs.” Today’s decision holds that a university “receives no deference” on such questions.

To determine the likely impact of today’s decision, it’s worth asking the following question: How difficult will it now be for a university to prove that it is permissible for it to adopt a program of racial preferences in admissions? I say it’s going to be pretty darned hard. Without any judicial deference to their educational expertise, schools will be hard-pressed to show that their programs are “narrowly tailored” or that there are no “racially neutral” alternatives that could have achieved the same goal. Many legal battles turn on the issue of who has the burden of proof and how high that burden is going to be. Fisher emphasizes that the burden is both high and clearly imposed on the university. By contrast, after Grutter, the conventional wisdom was that affirmative plans were largely safe from legal challenge so long as they did not include clear racial quotas or precise numerical bonus points for minority applicants.

This doesn’t mean that the legal battle over affirmative action is over. Far from it. In particular, there is likely to be litigation over the issue what qualifies as a “race-neutral” alternative to affirmative action.

As with other Supreme Court decisions on controversial issues, there is always a danger that commentators will interpret the ruling to align with their own preferences. For what it’s worth, my interpretation of today’s opinion is pretty far from what I would have preferred the Court to do. For example, Fisher reaffirms the doctrine that affirmative action preferences are at least sometimes permissible for purposes of promoting “diversity,” while leaving intact precedents holding that they cannot be used to achieve compensation for “societal” discrimination against minority groups. My view is exactly the opposite. Similarly, I believe that the Texas Ten Percent Plan is worse than conventional affirmative action, and likely unconstitutional. Today’s decision clearly leaves open the possibility that the Ten Percent Plan and other similar programs are acceptable “race-neutral” alternatives to explicit racial preferences. I find much to agree with in both Justice Thomas’ concurring opinion in Fisher (which argues that Grutter should be completely overruled), and Justice Ruth Bader Ginsburg’s dissent (which argues that the decision will lead universities to adopt deceptive admissions policies that pretend to be race-neutral, but really aren’t). Nonetheless, Fisher does make it significantly harder for universities to defend racial preferences in admissions. To that extent, it is a victory for opponents of affirmative action.

UPDATE: I have made some stylistic changes to this post.

UPDATE #2: Lawrence Hurley of Reuters also interprets the decision as making it more difficult for universities to defend racially preferential affirmative action policies:

To the relief of affirmative action supporters, the high court left intact existing court precedent that allows for limited consideration of race in university admissions.

But in a departure from its most recent precedent, the court ruled that when an appeals court rehears the case it must apply a more stringent legal standard in deciding whether the university’s policy violated the U.S. Constitution’s guarantee of equal protection, meaning the University of Texas program still hangs in the balance.

Adam Liptak, the Supreme Court reporter for the New York Times, adopts an intepretation that seems intermediate between the two described above:

The Supreme Court on Monday ordered lower courts to take a fresh look, under a more demanding standard, at the race-conscious admissions policy used to admit students to the University of Texas. The 7-to-1 decision was simultaneously modest and significant, and its recalibration of how courts review the constitutionality of affirmative action programs is likely to give rise to a wave of challenges to admissions programs at colleges and universities nationwide…..

The decision did not disturb the Supreme Court’s general approach to affirmative action in admissions decisions, saying that educational diversity is a government interest sufficient to overcome the general ban on racial classifications by the government. But the court added that public institutions must have good reasons to use the particular means they use to achieve that goal.

That requirement could endanger the Texas program when it is reconsidered by the federal appeals court in New Orleans.

UPDATE #3: At Salon, Jillian Rayfield rounds up reactions from a number of experts and commentators, including several whose interpretations of the ruling are closer to mine than Chemerinsky and Magliocca’s:

Damon Hewitt, of the NAACP Legal Defense and Educational Fund, said that this decision means that they “all live to fight another day on this.” Ben Jealous, the president and CEO of the NAACP, said the group is “pleased” with the court’s decision….

But, as Sherrilyn Ifill of the NAACP Legal Defense and Educational Fund put it in the same conference call with reporters, the Court’s decision creates a “sharper and tighter standard” for schools that wish to implement affirmative action policies….

Lyle Denniston of SCOTUSblog writes that the Court’s decision is “hardly enthusiastic” on the part of affirmative action:

Justice Kennedy repeated a statement that the Court has often reiterated in race cases: the standard of “strict scrutiny” must not be “strict in theory, but fatal in fact.” But, he went on, “the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact.” The emphasis was different, and it obviously was intended to be a meaningful difference.

Whether a university program that takes any account of race can run this legal course and survive, whether at the University of Texas or elsewhere, will depend upon cases that are now likely to unfold across the country. There is a strong new incentive for opponents of “affirmative action” in college admissions to test virtually every such program; indeed, in some ways, the tone of the opinion would seem to invite such further testing.