A return to the future for racial preferences at the Supreme Court

This week marks the half way point of the 25 year period after which Justice O’Connor famously said, “We [the Supreme Court] expect that. . .the use of racial preferences will no longer be necessary.” As if to commemorate the occasion, the Supreme Court tomorrow will hear argument in Fisher v. University of Texas at Austin in which the use of race in the University’s undergraduate admissions program is under review.

If the name of the case sounds familiar, it should. The same case was before the Court in 2013. At that time, the Court decided that the lower court had given too much deference to the University when considering whether its use of racial preferences is unconstitutional. As Hans von Spakovsky and Elizabeth Slattery describe the holding in a valuable paper, the Court ruled that schools must prove that their use of race is narrowly tailored to further compelling governmental interests and that courts must look at actual evidence, rather than rely on schools’ assurances of their good intentions. Accordingly, they remanded the case for such review.

On remand, the lower court upheld the University’s race-based admissions based on a newly asserted governmental interest — increasing the enrollment of minority students from majority-white schools (so-called “qualitative diversity”). They resorted to this concept because the University has achieved diversity as it is commonly understood by admitting the top 10 percent of the graduating class of every Texas high school (including, of course, many predominantly minority schools).

Unhappy with the level of diversity attained through this rule, Texas introduced explicitly race-based admissions based on “holistic review” of applicants, under which administrators can use race as a “plus” factor. Fearful that this approach could not survive the kind of means-ends tailoring strict scrutiny that the Supreme Court insisted on in the first Fisher case if the University relied on the justification of plain old diversity, the University is now relying on “qualitative diversity.”

However, as Judge Garza pointed out in a dissenting opinion, the University “failed to define this term in any objective manner.” Thus, “it is impossible to determine whether [its] use of racial classifications in its admissions process is narrowly tailored to its stated goal — essentially, its ends remain unknown.”

How will the Supreme Court decide the Fisher case this time around? It would probably be foolish to hazard a guess even after oral argument, never mind before.

We do know, however, the Justice Kagan has recused herself. Thus, a 4-4 vote would affirm the decision in favor of the University, but without providing precedent.

In Kagan’s absence, it seems likely that the vote will be either 4-4 or 5-3 against the University, depending on how Justice Kennedy sees matters. Conceivably, if a majority is prepared to decide the case against the University, Justice Breyer might join, in the hope of “damage control” (from the liberal point of view). It’s also quite possible that Justice Kennedy will vote against Texas but insist on a very narrow ruling.

At a Heritage Foundation conference this week, Professor James Blumstein of Vanderbilt Law School suggested that the vote to hear the case (which required four Justices) might indicate that a reversal is likely because there would be little point in taking the case only to have it end in a 4-4 stalemate. An interesting thought.

We may have a better idea of the outcome tomorrow after oral argument. However, this may well be one of those cases that looks like a cliffhanger until the decision is announced (probably in June of next year).