L ost in all the analysis of the Supreme Court’s recent decision in Fisher v. University of Texas at Austin, which approved the university’s affirmative-action plan, is the fact that the court had traveled 38 years in time only to end up where it started.
In Regents of the University of California v. Bakke, in 1978, Justice Lewis Powell, who cast the deciding vote, described the elements of a constitutional admissions policy that took race into account. He argued that courts should be deferential to universities on educational policy, that admissions policies come within this ambit, and that race can be taken into account (among other factors) if the thumb on the scale of justice is not too heavy.
He elevated the notion of diversity as a public good, and he perceived racial diversity as akin to other forms of student-body diversity — though one with more constitutional constraints. Today we use the phrase “holistic review” to describe this less-mechanical approach. Powell gave short shrift to affirmative action as a response to general societal discrimination; his central thrust was that the educational benefit to students, not fairness or distributive justice, could justify an affirmative-action program. Quotas were forbidden, and the minority and majority applicants could not be considered in separate pools.
This rationale, artfully sidestepping heated debates over a colorblind Constitution and remedial justice, resonated on university campuses across the country. And though Powell’s reasoning in Bakke was the view of only one justice, by the 1980s it was effectively the law of the land, except in a few states that had rejected such an approach. Offices of diversity and inclusion became commonplace, and today the national narrative around affirmative action in admissions is essentially the one espoused by Lewis Powell decades ago.
But in 1996, the Fifth Circuit Court of Appeals declared in Hopwood v. Texas that any use of race in admissions decisions was unconstitutional, and the Supreme Court declined to review the case. The state Legislature responded by adopting a plan that guaranteed college admission to students in the top 10 percent of their graduating classes at Texas high schools. The university supplemented the plan, which filled about 75 percent of the seats in the entering class, with holistic reviews that at that time did not consider race.
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After Hopwood, affirmative action was unlawful in some states and lawful in others until 2003, when the Supreme Court in Gratz v. Bollinger held unconstitutional the admissions plan for undergraduates at the University of Michigan and in Grutter v. Bollinger upheld the Michigan Law School’s affirmative-action program.
Justice Sandra Day O’Connor, who cast the decisive votes in those cases, in Grutter embellished the Bakke diversity argument, citing a wider range of reasons for affirmative action, including appeals to social justice and fairness. Justice Scalia vehemently dissented, arguing, among other things, that the Equal Protection Clause of the U.S. Constitution requires a colorblind admissions process, and that the university could achieve diversity without taking race into account if it put aside its emphasis on academic reputation.
So affirmative action hung by a thread in the nation’s highest court until Abigail Fisher sued the University of Texas at Austin. After Grutter, Texas had chosen to make race a factor in its holistic review process, and Fisher claimed that she was harmed as a result. In that 2013 decision, Justice Anthony Kennedy challenged the university to show that the plan was tailored to goals including diversity, and that there were no workable alternatives to race consciousness; the case was remanded. Finally, last month in Fisher II, Justice Kennedy, writing for the majority, upheld the constitutionality of the Texas approach.
There is great irony in his opinion. He does not directly cite the Bakke case, yet his rationale, at its core, is Justice Powell’s; the dissent by Justice Samuel Alito does refer to Bakke as a basis for strict scrutiny and as a rebuke to racial balancing, but not as the foundation for affirmative-action programs across the country.
After decades of legal uncertainty, multiple trips to the Supreme Court, myriad lower-court decisions, and millions of dollars spent by plaintiffs and colleges to anticipate judicial doctrine, Fisher II concludes that student-body diversity is largely an academic judgment, entitled to substantial deference, that universities do not have an interest “in enrolling a certain number of minority students,” and that race consciousness in admissions is defensible to achieve the articulated educational benefits. In addition to facilitating the breakdown of stereotypes and a better understanding among persons of different races, “student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.”
Justice Kennedy emphasizes the university’s compelling interest in admitting students “who can offer underrepresented perspectives” in the classroom and in enrolling a sufficient number of such students to avoid feelings of loneliness and isolation. Other positives are mentioned, most notably the value of minority-group members in leadership roles, but this is the gist of the opinion.
Kennedy also follows in the Powell tradition of meticulous attention to process. Here are some of the key rules for colleges to follow: There can be no quotas, and no separate pools, even if minority students receive a modest plus for race. There can be no undue weight placed on race, which must be just one factor among many. And if a holistic plan is adopted, reviewers must be trained to ensure uniform standards.
As this brief summary shows, there is far more punctilious procedure than there is rhetorical passion in the majority opinion.
Some nuances in that opinion are worth noting. One is the emphasis on the unique nature of the Texas plan, a hybrid approach that combines a percentage plan with race-conscious holistic review. Because the holistic system is used for only about a quarter of all admissions, it is far less sweeping than one in which the bulk of applicants are admitted through holistic review. Justice Kennedy may have mentioned this point repeatedly not just to limit Fisher II to its facts but also to demonstrate that Texas repeatedly sought to exhaust race-neutral alternatives.
Any such view is complicated, however, by his reference to Justice Ruth Bader Ginsburg’s 2013 dissent, which noted that the purpose of the Texas percentage plan, though unchallenged in the Fisher litigation, was to increase minority enrollment (“adopted with racially segregated neighborhoods and schools front and center”). In this view, the entire process was permeated with race consciousness.
There is no suggestion by the Fisher II majority that affirmative action may be constitutionally compelled for public universities. Diversity provides educational benefits that a college may choose to pursue through race-conscious admissions, but it is not required to do so. This strongly suggests that state bans in California, Michigan, and elsewhere will remain in place unless and until legislators and voters have a change of heart. In turn, public universities in those states will remain at a disadvantage in recruiting minority students when they compete with public institutions in other states and with private colleges.
So the patchwork of state approaches to affirmative action will persist, and every program of college admissions that treats race as a factor will be judged on its particular facts. Like Powell before him, Justice Kennedy has left the courthouse door open to future litigation, even at the University of Texas.
Though the scenery is familiar, the 38-year odyssey since Justice Powell first endorsed diversity in Bakke is far from over. Instead, the court has come full circle.
