On Tuesday, in the latest ruling in the long-running case of Fisher v. University of Texas, the U.S. Court of Appeals for the Fifth Circuit affirmed the ability of the University of Texas at Austin to use race in admissions. The decision was understandably celebrated by proponents of affirmative action. But the victory in this battle may, paradoxically, tee up a major loss in the larger war.
The ruling came in response to the U.S. Supreme Court’s 2013 decision in the case, a 7-to-1 opinion. In that decision the court remanded the case to the lower court with stern instructions that, in evaluating the means by which the university achieves diversity, the court apply “no deference” to the university’s contention that the goal of a diverse educational environment could be achieved only through racial preferences. The Supreme Court rebuked the Fifth Circuit for being too lax the first time around.
In Tuesday’s 2-to-1 decision, a defiant panel of the Fifth Circuit issued a ruling that is likely to prove short-lived for two reasons: Procedurally, the decision accelerates the timetable for possible Supreme Court review of the issue; and substantively, the decision oddly goes out of its way to provoke the author of the Supreme Court’s majority opinion in Fisher, Justice Anthony M. Kennedy. The white plaintiff in the case, Abigail N. Fisher, immediately announced she would appeal the ruling, which is likely to go first to the full Fifth Circuit court, known as an en banc proceeding, and then back to the Supreme Court.
As a procedural matter, critics of affirmative action want the Fisher case to return to the Supreme Court as quickly as possible. Chief Justice John G. Roberts has embraced a somewhat risky strategy of issuing conservative decisions that forge incremental change—sending a warning of sorts—before lowering the boom in a subsequent case that makes more-sweeping changes in the law. That was the approach employed in the context of voting rights, where an initially modest decision was followed by a more-drastic move cutting back on civil-rights protections. Something similar may happen on affirmative action.
But time is of the essence for conservatives. If matters are delayed too long, the Supreme Court’s fragile 5-to-4 conservative majority may be endangered by the retirement of one of its aging members and the appointment of a more-liberal jurist by President Obama or his successor.
As a matter of process, the Fifth Circuit’s decision plays into the hands of conservatives by expediting the possibility of Supreme Court review in two respects. First, the appeals court rejected UT-Austin’s request that it send the case back to the district court for a potentially lengthy hearing on factual issues. The appeals court sided with Fisher on the issue and ruled that, because there were no significant disagreements over the facts, a district-court trial was unnecessary.
Second, by handing a defeat to Fisher, the court empowered her to appeal the case to the full Fifth Circuit and then to the Supreme Court. If Fisher had won this round, the university would have been in the driver’s seat in deciding whether to appeal. It is possible that the university would have forgone an appeal in order to avoid a potentially negative Supreme Court decision. That is, UT-Austin could have taken a temporary loss for the team in order to preserve for a future, possibly more liberal, Supreme Court the flexibility to give more support for racial preferences in a new and different case. (A negative Fifth Circuit ruling for universities would have been binding only in that circuit, not the others.)
Civil-rights groups have pursued that strategy recently in the context of housing-discrimination cases in which liberals have forgone appeals because they did not want to create the possibility of a conservative precedent that would be difficult for liberals to eventually overturn.
Moreover, on the substance, the reasoning of the Fifth Circuit is likely to invite review—and reversal—of the lower court’s decision. Justice Kennedy’s opinion in the 2013 Fisher decision made two big substantive points and one stylistic one, all of which the Fifth Circuit’s majority opinion, written by Judge Patrick E. Higginbotham, oddly defies.
First, Kennedy wanted to push universities to try very hard to achieve diversity by alternative means, such as Texas’ “top 10 percent plan” or socioeconomic affirmative action. He wrote, in a key passage, that universities bear “the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.”
Second, whereas the Supreme Court in the 2003 Grutter v. Bollinger decision took the University of Michigan at Ann Arbor at its word that race-neutral alternatives would not work to achieve diversity, Kennedy (who dissented in Grutter) said in Fisher that courts should provide universities “no deference” on such questions.
Third, on a more symbolic level, Kennedy asserted that Fisher simply clarified the Grutter standard and faulted the Fifth Circuit for giving too much deference.
Higginbotham went after Kennedy on all three fronts. To begin with, he dismissed Kennedy’s emphasis on race-neutral alternatives, including the Texas top-10-percent plan. Oddly echoing Justice Ruth Bader Ginsburg’s losing dissent in the Fisher case, Higginbotham faulted the top-10-percent plan for relying on the fact that Texas secondary schools are segregated to produce racial diversity in higher education. The fact that the plan capitalizes on an unfortunate reality—high-school segregation—to produce something positive—racial diversity at UT-Austin—is unlikely to affect the Supreme Court’s thinking about this successful race-neutral program.
While Kennedy wanted to put pressure on universities to experiment with other alternatives, like socioeconomic affirmative action, Higginbotham blithely asserted they wouldn’t work, citing a 1998 study. But more-recent research consistently finds that socioeconomic plans can produce considerable racial diversity.
Matthew N. Gaertner, a researcher at Pearson who helped the University of Colorado at Boulder develop a socioeconomic affirmative-action plan, has found that Colorado could achieve greater racial diversity using socioeconomic preferences if the weight of the preference increased. Likewise, using the right socioeconomic factors—not just income but criteria like wealth and concentrated poverty—can produce considerable racial and ethnic diversity, as recent research by Anthony P. Carnevale and colleagues at Georgetown University has shown.
Second, Higginbotham paid lip service to Kennedy’s requirement that courts give “no deference” on the question of whether alternatives can produce “sufficient” racial diversity. In order to apply strict scrutiny, as Judge Emilio M. Garza pointed out in his Fifth Circuit dissent, the university must clearly define its goal: creating a “critical mass” of minority students who can help realize the educational benefits of diversity.
Higginbotham provided fuzzy answers as to what would constitute a critical mass. He acknowledged that race-neutral alternatives at UT-Austin actually produced greater levels of black and Latino representation than racial preferences had in the past, but said critical mass is about more than numbers. We are left, Garza noted, with the university’s assertion that “it knows critical mass when it sees it.” Accepting that line of thinking is unlikely to meet Kennedy’s standard for “no deference” in measuring whether the means are appropriate to the end.
Universities are clearly stuck between a rock and a hard place, having to avoid quotas on the one hand and a meaningless concept of critical mass on the other. It remains to be seen whether the Supreme Court will devise a way out of this mess.
Finally, on a symbolic level, Higginbotham took an unnecessary dig at Kennedy’s contention that the Fifth Circuit had misapplied the Grutter precedent. Higginbotham wrote: “Bringing forward Justice Kennedy’s dissent in Grutter, the Supreme Court faulted the district court’s and this court’s review of UT Austin’s means to achieve the permissible goal of diversity.” On the merits, Higginbotham is surely correct that Fisher was tougher than Grutter, essentially adopting Kennedy’s Grutter dissent. But as a matter of tone, calling out Kennedy seems like an odd move for a lower-court judge hoping to have his decision upheld on appeal.
The entire decision seems more designed to plant a flag for an eventual dissent in the Supreme Court than to persuade the court’s majority. As the higher-education lawyer Scott Greytak notes, Higginbotham’s new ruling has strong parallels to his earlier decision, which was rejected by the Supreme Court on a vote of 7 to 1. The new opinion, Greytak says, is likely to trigger jokes about the definition of insanity—repeating the same thing and hoping for a different result.
For the moment, supporters of affirmative action have something to celebrate. But in the long term, they should probably get about the business of creating workable alternatives.
Richard D. Kahlenberg, a senior fellow at the Century Foundation, is editor of The Future of Affirmative Action: New Paths to Higher Education Diversity After Fisher v. University of Texas (Century Foundation Press, 2014).
