United States Supreme Court in Fisher II: UT Affirmative Action Plan Constitutional

Professor Ruthann Robson, City University of New York (CUNY) School of Law

On Fisher's second trip to the Court, the United States Supreme Court has found that the affirmative action plan of the University of Texas did not violate the Equal Protection Clause.  In a relatively brief opinion for the majority, Justice Kennedy, joined by Ginsburg, Breyer, and Sotomayor - - - recall Kagan was recused - - - affirmed the Fifth Circuit's conclusion rebuffing Fisher's equal protection claim (and some believed rebuffing the Supreme Court's remand).

Recall that Fisher I was a 7-1 opinion. (Only Justice Ginsburg dissented in Fisher I; Justice Kagan was recused, and Justice Sotomayor's joining of the majority has been subject to much speculation after her impassioned dissent in Schuette v. BAMN) remanding the case to the Fifth Circuit.  On remand in 2014, the Fifth Circuit somewhat surprisingly essentially reiterated its earlier position, holding that the university met its burden of demonstrating the narrowing tailoring necessary to satisfy strict scrutiny under the Equal Protection Clause.

During oral argument, the possibility that there could ever be a constitutional mention of race in an admissions program was at issue, with Breyer actually "spelling it out" (After Breyer asked for an example of using race and Fisher's attorney replied "you could give more emphasis to socio-economic factors," Breyer stated: "That's not to use race. I'm saying r­-a­-c­-e, race. I want to know which are the things they could do that, in your view, would be okay. Because I'm really trying to find out. Not fatal in fact, we've said. Okay? Not fatal in fact. Fine.")

Essentially, the Court today found that there were no workable race-neutral means to accomplish UT's compelling interest in diversity:

In short, none of petitioner’s suggested alternatives— nor other proposals considered or discussed in the course of this litigation—have been shown to be “available” and “workable” means through which the University could have met its educational goals, as it understood and defined them in 2008. Fisher I, supra, at ___ (slip op., at 11). The University has thus met its burden of showing that the admissions policy it used at the time it rejected peti­tioner’s application was narrowly tailored.

Kennedy's opinion ends with a paean to diversity and a warning, including to UT:

A university is in large part defined by those intangible “qualities which are incapable of objective measurement but which make for greatness.” Sweatt v. Painter, 339 U. S. 629, 634 (1950). Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. But still, it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.

In striking this sensitive balance, public universities, like the States themselves, can serve as “laboratories for experimentation.” United States v. Lopez, 514 U. S. 549, 581 (1995) (KENNEDY, J., concurring); see also New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting). The University of Texas at Austin has a special opportunity to learn and to teach. The University now has at its disposal valuable data about the manner in which different approaches to admissions may foster diversity or instead dilute it. The University must continue to use this data to scrutinize the fairness of its admis­sions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.

The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.

Justice Alito disagreed strongly and read portions of his dissent from the bench.  His dissent was joined by Chief Justice Roberts and Justice Thomas (who also wrote briefly separately).  Alito's 50 page dissent argues that the means chosen is not satisfied, but also questions diversity as a compelling governmental interest:

The University has still not identified with any degree of specificity the interests that its use of race and ethnicity is supposed to serve. Its primary argument is that merely invoking “the educational benefits of diversity” is sufficient and that it need not identify any metric that would allow a court to determine whether its plan is needed to serve, or is actually serving, those interests.

Interestingly, Alito ends by suggesting that perhaps Amanda Fisher has no standing after all, and implying that his colleagues' (or one particular colleague?) integrity has eroded:  "The majority cannot side with UT simply because it is tired of this case."