Our friend Kirk Kolbo represented the plaintiffs in the landmark Gratz and Grutter cases that challenged race discrimination at the University of Michigan. Gratz and Grutter provided the framework for the Supreme Court’s decision today in Fisher v. University of Texas, in which a white applicant who was denied admission argued that she had been the victim of illegal race discrimination because of the university’s racial preference policies. So I asked Kirk to give us his thoughts on the significance of today’s Fisher decision. Here is his response:
The Supreme Court’s decision in Fisher v. University of Texas will be a disappointment to many because the Court did not reverse, or even reconsider, its 2003 holding in Grutter v. Bollinger that “student body diversity is a compelling interest that can justify the use of race in university admissions.” But writing for the 7-1 majority in Fisher, Justice Kennedy explained that the plaintiff had “not ask[ed] the Court to revisit that aspect of Grutter’s holding.” Justice Scalia made the same point in a short, concurring opinion. So the Court said it took “as given for the purposes of deciding this case” its decisions in Grutter, Gratz v. Bollinger (the companion case to Grutter), and the 1978 Bakke decision authored by Justice Powell. It is not clear why the plaintiff in Fisher did not offer a challenge, at least as an alternative argument, to the diversity-as-compelling-interest rationale. But not having done so, it should come as no surprise that the Court declined to take the issue up again.
Still, there are grounds for opponents of racial preferences to take some satisfaction from the Court’s opinion in Fisher. The decision results in a remand of the case back to the Fifth Circuit Court of Appeals for a proper consideration by that court (or more likely, or eventually, the trial court) of whether the University of Texas’ race-conscious admissions program satisfies the constitutional requirements of “strict scrutiny.” The strict-scrutiny test for all state-sponsored racial classifications has been around for a long time. So it is interesting that the Court’s opinion in Fisher goes into painstaking detail (more than five pages are devoted to the issue) about how the Fifth Circuit should go about applying strict scrutiny after the remand.
The Grutter court, while upholding the racial preferences of the University of Michigan law school, also held that such policies must satisfy strict scrutiny. But a careful reading of Justice Kennedy’s opinion in Fisher leaves the distinct impression that the requirements of strict scrutiny in school admission cases have been clarified, or re-defined, to be more stringent than some understood them to be from Justice O’Connor’s opinion for the Court in Grutter.
Strict scrutiny requires both a “compelling interest” justifying the use of race as a factor in decision-making, and means of implementing that interest that are “narrowly tailored” to achieving it. After Grutter, some concluded that the Court would “defer” to the “good faith” judgment of university administrators in their decision to use race as a factor to achieve student body diversity. But Fisher explains that the deference to educators referred to in Grutter is limited to the determination that diversity is a compelling educational interest. Even then, the decision is entitled to “some, but not complete deference,” which must be based on a “reasoned, principled explanation for the academic decision.”
Whether and how a school can use racial means to achieve an interest in diversity are not, however, matters to which courts should defer to the judgment or good faith of education administrators. Fisher states that a university “receives no deference” on the question of whether the “means chosen . . . to attain diversity are narrowly tailored to that goal.” Among other things, narrow tailoring means that educators must prove that the use of race is “necessary” to achieve the educational benefits of diversity. While Fisher cites Grutter for these propositions, they are articulated with much more force in Fisher. Perhaps the strongest point in Fisher is the statement that “[t]he reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” (emphasis added).
On these grounds, the Court held that the Fifth Circuit had granted too much discretion to the University of Texas, and relied too much on the University’s assurances of good faith, on the questions whether and how race could be used as a factor to achieve diversity. Accordingly, the case was remanded for further proceedings to determine those issues consistent with the opinion of the Court in Fisher.
If the requirements placed on educators by Fisher seem stronger than those imposed by Grutter (and they do to me), one explanation can be found in Justice Kennedy’s separate opinion in the earlier case. While Kennedy wrote in Grutter that diversity could be a compelling educational interest, most of his opinion is taken up with a scathing dissent from the Court’s conclusion that the University of Michigan policy survived strict scrutiny. Instead, he wrote that the Court’s review was “nothing short of perfunctory,” and that the decision amounted to the “suspension of . . . strict scrutiny.” Given Justice Kennedy’s pivotal role on the Court in this line of cases, his opinion in Grutter is probably as much a guidepost for how “diversity” will fare in future cases as is today’s decision in Fisher. That is good news for opponents of racial preferences.
Ultimately, however, the problem remains after Grutter, Gratz, and Fisher, that the Court continues to view the lawfulness of racial preferences, particularly in the education context, as a highly fact-bound inquiry, making challenges to such policies expensive and drawn out, and the predictability of outcomes difficult. It could be years from now before there is a final resolution after remand of the Fisher case. These factors work in favor of the entrenched architects of racial admissions policies at so many academic institutions across the country, and against the individual who only wants to have his or her application considered without regard to race.
Kirk’s analysis seems sound to me, as well as being consistent with Paul’s rather skeptical take earlier today. Race discrimination in education has been on life support for a while now, and I think liberals will be satisfied if they can merely keep it alive, so that they can fight the battle another day when the court might be favorably disposed toward discrimination, and, in the meantime, continue applying race preferences under one pretext or another.
UPDATE: Scott Rasmussen finds that a whopping 25% of Americans favor affirmative action in college admissions. How the Democratic Party can fly in the face of such overwhelming public sentiment without paying a penalty is a question to which I don’t have an answer.