By Cara L. Gallagher, weekend contributor
In the first line of his 51-page dissent in Fisher v. The University of Texas at Austin, Justice Alito wrote that “something strange is going on at the Supreme Court.” Indeed, it was. I think it’s safe to say no one thought race-based admissions processes would survive after the first Fisher case in 2013. The four conservative Justices (Scalia included) have long been chomping at the bit to quash it, believing instead that the way to end race-based discrimination is to “stop discriminating on the basis of their race.” Universities have no less continued to try different ways to diversify campuses but have ostensibly been told by the SCOTUS: You’re doing it wrong.
Certainly Justice Kennedy, who authored the 4-person majority opinion in Fisher last week, seemed poised to tell the University of Texas at Austin they too were doing it wrong. He all but said as much in Fisher I in which the Court gave UT a second chance to prove the use of race was necessary to diversify their campus. It was a finger-wagging opinion if ever there was one, with explicit instructions that UT had to pass what’s known as the “strict scrutiny” test. This standard is required in order for public universities to consider the race of its applicants. The UT had the burden of proving they’d met the strict scrutiny standard by demonstrating “no workable race-neutral alternatives would produce the educational benefits of diversity.” In Fisher I, Kennedy criticized the lower court’s ruling saying it couldn’t simply give UT the benefit of the doubt and had to closely examine how the process worked in practice.
Fisher went back to the university in 2014, who kept the question about race on the application, and it returned to the 5th Circuit Court of Appeals which, once again, gave the UT’s race-based admissions policies the “OK.”
Last June, the Supreme Court agreed to hear Fisher again sending a clear message that there were at least four justices looking to hear Abigail Fisher’s appeal in order to deal a final blow to affirmative action. During oral arguments in December, Kennedy, seemingly frustrated with the University’s unchanged policies, said to its lawyer “it’s as if nothing happened.” By the end of arguments, I was sure Kennedy had joined the four conservatives and affirmative action could be pronounced dead that day.
But last week, Justice Kennedy, writing for the four-person majority in Fisher II, resuscitated it. His unexpected opinion, which took only a few minutes to read in Court, said the university had met its burden, Abigail Fisher was not denied equal treatment, and the use of race in their holistic admissions process was necessary to further diversify UT’s student body.
The takeaways from his opinion reveal a few things we’ve always known about him and one or two new things about Kennedy. First, as we’ve known, he is as mercurial and swing-y as always. The man you knew would write the poetic justice opinion in Obergefell last summer, after the DOMA decision two years prior, is not always that predictable. Second, he still holds the power of being the decisive vote. With Scalia gone and Kagan recused, this case was the only one immune to any potential 4-4 tie scenario, making his vote conclusive. What’s new is that we learned what a data junkie Kennedy is.
Here’s a rundown of how he came to his decision:
First, as Kennedy did accept in Grutter, the UT does have a compelling need to use race as a factor in their holistic admissions process in order to achieve a critical mass of diverse students. “Rather, a university may institute a race-conscious admissions program as a means of obtaining ‘the educational benefits that flow from student body diversity.’” But creating a critical mass isn’t something that can be prescribed with an exact number because doing so would give the appearance of saving seats or meeting quotas, which the Court said ‘no’ to in the 1978 Bakke case.
What can be quantified, however, are the ways in which a school measures the diversity of its students and the efficacy of its admissions recruitment programs. Kennedy points to numerous ways in which the UT did this, namely a “a year-long study, which concluded the use of race-neutral policies and programs had not been successful in providing an educational setting that fosters cross-racial understanding, providing enlightened discussion and learning, or preparing students to function in an increasingly diverse workforce and society.”
Demographic data pointed out “consistent stagnation” in terms of the percentage of minority students enrolling at the university from 1992 to 2002. Further reports revealed that although minority enrollment had increased in small amounts over those years, diversity wasn’t flowing from the quad into the classrooms and labs, and thus more students of color were needed. [“Only 21% of undergraduate classes had more than one African-American student enrolled. Twelve percent of these classes had no Hispanic students.”]
Fisher’s argument was that the use of race in the holistic process is unnecessary because TTPP is already a race-neutral plan that brings in significant numbers of minority students from schools whose populations are dominated by black and Hispanic students. This argument was challenged by Kennedy who pointed out TTPP isn’t race-neutral, and “cannot be understood apart from its basic purpose, which is to boost minority enrollment.” He relied upon Justice Ginsburg’s dissent in Fisher I to remind us that, in Texas, “Percentage plans are ‘adopted with racially segregated neighborhoods and schools front and center stage.’” “It is race consciousness, not blindness to race, that drives such plans.” Further, over the past decade, minority enrollment through TTPP has languished while the holistic method has helped increase the numbers of minorities admitted. For instance, African-American students admitted went from 3.5% in 2003 to 6.8% in 2007. Hispanic students, 11% in 2003 to 16.9% in 2007.
Fisher suggested that there are numerous other available race-neutral ways of achieving diversity like intensifying outreach efforts to black and Hispanic students. According to Kennedy, UT did that and opened new regional admissions centers, increased its recruitment budget by half-a-million dollars, and organized over 1,000 recruitment events. But, as he said, “None of these efforts succeeded.”
Lastly, Fisher’s proposal to lift the cap of automatic admittance from the top ten to the top fifteen percent – which would’ve helped her as she was in the top 12% of her class – wasn’t possible because the University has no power to change state policy. Furthermore, focusing only on one criteria (GPA) would be a limited way of creating a student body. Such a system “would exclude the star athlete or musician whose grades suffered because of daily practices and training” “[the] talented young biologist who struggled to maintain above-average grades in humanities classes. And it would exclude a student whose freshman-year grades were poor because of a family crisis but who got herself back on track in her last three years of school, only to find herself just outside of the top decile of her class.”
Proponents of affirmative action can put Fisher II down as a win. However, Kennedy’s opinion isn’t a one-size-fits-all decision that can be used the next time an affirmative action case comes up. A thin (4) majority joined Kennedy’s opinion emboldening the point that this case was truly sui generis, or unique to Texas and thus not applicable to Michigan, North Carolina-Chapel Hill (where Fisher’s legal team is directing their next affirmative action case), Illinois, Georgia, etc. Not unless the school happens to be in a state like Texas that has a very distinct piece of legislation like the Top Ten Percent Plan.
The TTP Plan works in Texas only insofar as it fits the structural makeup of minority communities, which tend to be set against the backdrop of racial segregation. Most secondary schools in the Houston and Dallas metropolitan areas are segregated, many of which are majority-minority schools populated almost exclusively by students of color. Relying on these divisions, the legislature and governor used them as a race-neutral way of diversifying UT by automatically admitting ten percent of each class.
Now that Fisher II has been decided, it’s not the only way UT can diversify its campus.
Follow Cara on Twitter @SupremeBystandr.
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