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Reflections on Fisher v. University of Texas By Professor Theodore M. Shaw '79

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New York, June 24, 2013—The Supreme Court’s long awaited decision in Fisher v. University of Texas is what some hoped for but dared not expect. For others it is neither what was hoped for nor expected. For all it should serve as a reminder that predicting the outcome of Supreme Court cases is, more often than not, a fool’s errand.  

Fisher appeared to promise a decisive show-down on the issue of diversity/affirmative action in higher education, to be decided by a Court that is markedly different than the one that ruled in Grutter a decade ago. Gone are Justices Sandra Day O’Connor, John Paul Stevens, David Souter, and Chief Justice William Rhenquist, replaced by Justices Samuel Alito, Sonia Sotomayor, Elena Kagan, and Chief Justice Roberts. The perceived epicenter of the Court is now Justice Kennedy, who, while he has never voted to uphold a race-conscious program that has come before him, in a 2007 case entitled Parents Involved in Community Schools v. Seattle School District No. 1,  declined to provide the fifth vote for the proposition that all nonremedial race conscious measures are unconstitutional. Nevertheless, many believed that in the 2012 and 2013 Supreme Court terms the Roberts Court had teed up several cases that seemed to provide anti-diversity/affirmative action activists an opportunity to realize the aims of the thirty year conservative project on race, and Fisher was at the front of the queue.
 
Fisher failed to reach the core issue of whether race conscious admissions programs violate the Fourteenth Amendment of the United States Constitution. Justice Kennedy, joined by six justices declined to revisit the issue of whether, as decided in Grutter, diversity was a compelling state interest. Justice Scalia concurred on the basis that the petitioner had not argued that Grutter should be overturned, and Justice Thomas concurred while making it clear that he would vote to overturn Grutter and find that race conscious admissions in pursuit of diversity are unconstitutional.
 
Opponents of diversity/affirmative action could read Kennedy’s opinion to go no further than Scalia’s restrained vote to avoid deciding issues that were not presented by the parties, even while his anti-diversity/affirmative action views are well-known. Yet diversity/affirmative action advocates can read Kennedy’s Fisher opinion to reaffirm Bakke and Grutter, inasmuch as Kennedy devotes considerable attention to restating their holding that diversity is a compelling state interest that can justify narrowly tailored consideration of race. If Kennedy shared Scalia’s hostility to race conscious admissions as upheld in Grutter, much of his opinion would be gratuitous. Central to Justice Kennedy’s decision in Fisher is his observation that
 
     A court, of course, should ensure that there is a reasoned, principled explanation for the academic decision [to pursue the educational benefits  that flow from student body diversity]. On this point, the district court and the court of appeals were correct in finding that Grutter calls for deference to the University’s conclusion, based on its experience and expertise that a diverse student body would serve its educational goals. There is disagreement about whether Grutter was consistent with the principles of equal protection in approving this compelling interest in diversity [referring to concurrences of Justices Scalia and Thomas]. But the parties here do not ask the Court to revisit that aspect of Grutter’s holding.
 
     [quotations and citations omitted]
 
Thus, while acknowledging that the Court would be divided if it reached Grutter’s central issue (whether the equal protection clause allows consideration of race in college admissions), Justice Kennedy did not join either Scalia in signaling or Thomas in stating opposition to Grutter’s core tenets. Taken with Justice Kennedy’s opinion in Parent’s Involved, Kennedy’s opinion in Fisher should do nothing to undermine the legal grounds for colleges’ and universities’ belief in diversity as a compelling interest.
 
Fisher does emphasize the narrow tailoring requirement of Fourteenth Amendment jurisprudence. In doing so, however, the Court does not introduce a new standard. Justice Kennedy’s reminds us of Adarand’s observation that strict scrutiny must not be “strict in theory but fatal in fact”, but adds that neither should it be “strict in theory but feeble in fact”. By definition strict scrutiny should not be “feeble”. Kennedy’s proscription serves as a reminder of the nature of the task charged to actors who engage in race conscious measures, but it does not introduce a new standard. Higher educational institutions pursuing diversity would do well to ensure that their efforts are consistent with Fourteenth Amendment standards; there is nothing new in that.
 
For Abigail Fisher and the University of Texas, their dispute is not over. Both sides claim victory, but the Supreme Court’s decision has limited effect. The Court is sending the case back to ensure that the University’s admissions program satisfies strict scrutiny. One wonders whether air has gone out of the case, brought by a plaintiff carefully selected by anti-diversity conservative activists. Ms. Fisher graduated from college in 2012, and the stakes for her include a refund of her UT application fee, and nominal damages.  Given Texas’ Top ten per cent plan, Fisher has always been atypical among cases challenging diversity efforts. Its significance as a national bell-weather may be limited.
 
For now, Fisher extends a thirty-five year string of cases, starting with Bakke and extending through Gratz and Grutter, in which the Supreme Court has upheld or refused to invalidate diversity as a compelling state interest in college admissions. Although over the years the Court has been deeply divided, that string of cases still stands as governing precedent.
 
Theodore M. Shaw '79 is Professor of Professional Practice and served more more than 20 years as an attorney with the NAACP Legal Defense Fund. He played a key role in drafting the admissions policy that was upheld by the U.S. Supreme Court in Grutter v. Bollinger and was lead counsel for black and Latino interveners in Gratz v. Bollinger. He is of counsel of the law firm of Fulbright & Jaworski.

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