This article first appeared in the St. Louis Beacon, June 24, 2013: Affirmative action survived in the U.S. Supreme Court on Monday, but universities will have a harder time defending racial preferences in court. The justices said that universities must show that they have no other way to achieve diversity.
The result, experts said, is to further limit consideration of race in admissions.
Joel Goldstein, a professor at Saint Louis University Law School, said the decision “appears to further chip away at affirmative action plans that use race as a factor to consider in student applications.”
Gregory P. Magarian, a professor at Washington University Law School, said the court had put a “relatively restrictive gloss” on its previous affirmative action decisions, the “main consequence” of which will be to “encourage litigation.”
In what appeared to be a compromise decision, the court decided by a 7-1 vote to send the University of Texas affirmative action plan back to the lower courts for closer scrutiny. Justice Anthony M. Kennedy, the swing justice on the court, wrote the opinion, which stopped short of reading affirmative action out of the Constitution.
The court said that the court of appeals had to reconsider Abigail Fisher’s claim that less qualified students had been admitted to the University of Texas instead of her. The lower court was in error to assume that university was acting in good faith, the court said.
The majority included both justices who favor and oppose affirmative action. But that doesn’t mean justices changed their minds. Justices Antonin Scalia and Clarence Thomas said they still would end affirmative action, but noted along with Kennedy that the court had not been asked to throw out its earlier precedents permitting racial preferences.
This amounts to a tepid adherence to precedent, but many civil rights advocates had feared much worse. They had thought the court would use the University of Texas case to end affirmative action entirely.
In some ways, the place affirmative action has in the Constitution remains as precarious as it has since the 1978 Bakke decision allowing race to be considered as a plus in admissions. Ever since Bakke, a one-vote majority on the court has supported such narrow affirmative action.
First the swing justice was Lewis Powell, who wrote in Bakke that specific seats in the medical school at the University of California at Davis could not be set aside minorities. But he said that the so-called Harvard Plan of giving a plus to a student to achieve diversity was constitutional.
The next swing justice was Sandra Day O'Connor who reaffirmed Bakke a decade ago in a case from the University of Michigan law school. She emphasized that affirmative action must meet court's toughest test of strict scrutiny: It must serve a compelling state interest and must be narrowly tailored to meet that interest.
Justice Kennedy’s opinion Monday made strict scrutiny even stricter.
Goldstein, the Saint Louis University professor, wrote in an email that Kennedy opinion on Monday was consistent with his criticism of the O’Connor’s decision in the Michigan case.
Kennedy had said in the Michigan case that O’Connor “had not really applied strict scrutiny because in his view she had not really required that the Michigan program be narrowly tailored. He thought she had been too deferential to the university in assessing the law school's program.”
“…Here (in the Texas case) he envisions more scrutiny of university decisionmaking, including their consideration of race neutral alternatives, to determine whether it was ‘necessary’ to use race to achieve diversity's educational benefits, and attaches less significance to their good faith efforts.”
Justice Kennedy wrote in Monday’s decision that the Texas plan had met the compelling state interest of diversity but that the lower court had not scrutinized the plan to make sure it was narrowly tailored.
"Narrow tailoring ... requires that the reviewing court verify that it is 'necessary for a university to use race to achieve the educational benefits of diversity,'" wrote Kennedy, quoting a line from Bakke. "This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.
"Although narrow tailoring does not require exhaustion of every conceivable race-neutral alternative, strict scrutiny does require a court to examine with care, and not defer to, a university’s serious, good faith consideration of workable race-neutral alternatives.
"The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity," he wrote.
That could be hard for the University of Texas to prove. The university already has a program that admits the top 10 percent of high school graduates in the state, which provides a substantial number of minorities.
But the university concluded that it was missing a “critical mass” of minority students that would ensure that classes throughout the university were diverse. For that reason it implemented an additional affirmative action measure to consider race as one of a number of attributes that would help an applicant.
The difference between Kennedy’s approach Monday and O’Connor’s a decade ago is illustrated by the way in which he rephrased a well-know line from her opinion. O’Connor had said strict scrutiny must not be “strict in theory, but fatal in fact.” In other words, some affirmative action programs should pass the test. But Kennedy, after quoting O’Connor said, “the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact.”
That wasn’t the only way Kennedy’s rendition of affirmative action differed from O’Connor’s. Gone from Kennedy’s opinion was O’Connor’s reliance on the importance of diversity in creating a better society.
Goldstein said, “Justice O'Connor's opinion gave greater weight to the costs of long-term societal discrimination against blacks and the need to open leadership roles in society to those from disadvantaged minorities than had Justice Powell's in Bakke. Justice Kennedy prefers an approach more like Justice Powell's in Bakke to Justice O'Connor's.”
The workmanlike, antiseptic quality of Kennedy’s opinion is a far cry from the opinion written by Justice Thurgood Marshall in the Bakke case. Marshall, the famed civil rights lawyer and first black justice on the court, wrote then:
“It must be remembered that, during most of the past 200 years, the Constitution, as interpreted by this Court, did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.”
Goldstein said that “Missing from the discussion in the Fisher opinions are the points which Justice Marshall made so eloquently in Bakke. That's a perspective that should not be lost.”
The only references to slavery and segregation in Monday’s opinion were in the concurring opinion of Justice Clarence Thomas, who replaced Marshall on the court and has almost entirely opposite views on race.
Thomas wrote at length on Monday that slavery and segregation both were considered “benign” institutions that enlightened blacks from Africa. He said that following this history the court should not endorse affirmative action programs that are defended as benign discrimination.
Magarian, the Washington University professor, said that court’s decision Monday to preserve affirmative action in some form, might provide political protection for an opinion he fears will be issued later in the week, ruling part of the Voting Rights Act unconstitutional.
Magarian wrote in an email that the court’s affirmative action decisions have “turned affirmative action for higher education into a sort of cat-and-mouse game: You can consider race in admissions if you hide it well enough, but the courts' job is to look for it. Fisher perpetuates and exacerbates that state of play. By emphasizing the rigor of the tailoring inquiry without offering substantive guidance, the Court simply encourages litigants to take shots at universities.
“The big question is whether the Court intends to revisit the issue soon, or whether it intends this decision as a settlement of the law for the foreseeable future. I'd like to think the Court intends a settlement; but if I'm right about the short-term political strategy at work here (blunt the political impact of the Voting Rights Act decision), this case may just represent a temporary holding action on a path toward declaring affirmative action unconstitutional.”
The lone dissenter on Monday was Justice Ruth Bader Ginsburg, who said the University of Texas plan was clearly constitutional.