Law & Courts

Aftershocks From Affirmative Action Ruling to Hit K-12, College

By Mark Walsh — July 07, 2016 7 min read
Abigail Fisher, right, who challenged the use of race in college admissions, walks with lawyer Edward Blum following oral arguments last December at the U.S. Supreme Court in Washington.
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The U.S. Supreme Court’s decision to uphold the race-conscious admissions program at the University of Texas at Austin was greeted by both supporters and opponents of affirmative action as something they didn’t see coming. And they said the reverberations will be felt from the most selective colleges in the country to neighborhood elementary schools.

“This was obviously a big surprise,” said Christina Swarns, the director of litigation for the NAACP Legal Defense and Educational Fund in New York, which filed a friend-of-the-court brief supporting the university’s plan. “It demonstrates a remarkable evolution in the way [Justice Anthony M. Kennedy] thinks about these issues.”

In Fisher v. University of Texas at Austin (Case No. 14-981), decided June 23, Kennedy wrote for a 5-3 majority that “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.”

Kennedy had never voted to uphold a race-conscious education plan and had reportedly written a draft decision striking down the University of Texas plan the first time the high court had reviewed it in the 2012-13 term. That opinion never saw the light of day, but Kennedy did write the more restrained Fisher I decision that called for a federal appeals court to give greater constitutional scrutiny to UT’s plan.

The latest decision, in what will become known as Fisher II, was indeed a surprise to anyone who traced Kennedy’s past decisions on race-conscious government action, including his dissent to the 2003 decision in Grutter v. Bollinger, which upheld an affirmative action plan at the University of Michigan law school, said William Consovoy, an Arlington, Va., lawyer who helped represent Abigail Fisher. She is the white student from the Houston area who sued under the 14th Amendment’s equal-protection clause after being denied admission to UT’s fall 2008 freshman class.

“In terms of the future, we always did see this as a unique case,” said Consovoy, also the co-director of the Supreme Court Clinic at the George Mason University law school, which also is in Arlington and was renamed for Justice Antonin Scalia after the justice died in February.

“I don’t think it tells us what’s going to happen going forward,” Consovoy said. “As I read Fisher [II], it invites another challenge.”

‘Something Strange’

Supporters of affirmative action at the university level as well as in elementary and secondary education were more optimistic that a page has been turned in the nation’s long debate over affirmative action in education.

Several groups primarily representing K-12 interests had filed briefs in the case backing UT by arguing that racial diversity is important at every level of education.

After the decision, National Education Association President Lily Eskelsen García issued a statement saying that “the mission of public elementary, secondary, and higher education is to instill in all students the values on which our society rests and to provide them all, regardless of race, with the skills and knowledge necessary to realize their full potential. That mission cannot be fulfilled without racially diverse classrooms.”

Thomas J. Gentzel, the executive director of the National School Boards Association, said in a statement that “it takes dedicated efforts to achieve racial, ethnic, and socioeconomic diversity and NSBA is pleased that the court affirmed its long-standing principles in support of policies and practices that foster diversity and integration.”

But Richard D. Kahlenberg, a senior fellow at the Century Foundation, who opposes race-based affirmative action and has long advocated for using socioeconomic factors to achieve diversity, said that many K-12 schools will respond to the Fisher II decision cautiously because of the continuing application of the high court’s 2007 decision in Parents Involved in Community Schools v. Seattle School District.

In that decision, the court sharply limited the ways school systems that are not under federal desegregation plans could use race to assign students to particular schools. Kennedy wrote a much-analyzed concurrence in that case that outlined certain ways he believed schools could continue to take race into consideration.

(Interestingly, the only citations in the most recent case to the Parents Involved decision came in the dissent written by Justice Samuel A. Alito Jr. on behalf of himself and Chief Justice John G. Roberts Jr. and Justice Clarence Thomas, including several times when Alito appeared to be throwing Kennedy’s words from the 2007 concurrence back at him.)

Kahlenberg said that research data by the Century Foundation show that school districts and charter schools have been more willing than universities to embrace socioeconomic plans, which tend to result in achieving racial as well as socioeconomic diversity.

The difference between K-12 schools and higher education in this regard is that school districts must educate everyone in their jurisdictions, and just seek to sort their student population among schools in ways that boost diversity, he said.

“By contrast, in higher education, you’re asking institutions to change their admissions systems and spend to recruit lower-income students, which is expensive,” he said.

Still, Swarns, of the NAACP Legal Defense and Educational Fund, said the Fisher II decision is “a big win” for proponents of affirmative action at every level of education, noting that “at this point, we have only three justices with clear and unambiguous opposition to race-based admissions”—Alito, Roberts, and Thomas.

In his dissent, Alito said that “UT has never provided any coherent explanation for its asserted need to discriminate on the basis of race, and even though UT’s position relies on a series of unsupported and noxious racial assumptions, the majority concludes that UT has met its heavy burden. This conclusion is remarkable—and remarkably wrong.”

Upholding the Plan

Kennedy’s workmanlike opinion never fully responds to Alito’s barrage of criticisms. The majority opinion, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor, suggests that the decision is narrowly confined to the unusual facts of the long-running UT case. (Justice Elena Kagan did not participate in the case, presumably because she worked on it while serving as U.S. solicitor general early in President Barack Obama’s administration.)

Kennedy focused on the role of the Top Ten Percent plan in UT’s admissions. That plan, a state legislative enactment that grants automatic admission to any state higher education campus to those who finish at the top of their high school classes, has been taken as a given since its implementation in 1998, Kennedy said, creating somewhat of an “artificial” landscape for admissions at UT-Austin.

“The fact that this case has been litigated on a somewhat artificial basis ... may limit its value for prospective guidance,” Kennedy said.

He stressed that the university has a continuing obligation to satisfy the burden of strict scrutiny of its race-conscious program by responding to “changing circumstances.”

“The University of Texas at Austin has a special opportunity to learn and to teach,” Kennedy said. “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.”

Kahlenberg, the Century Foundation fellow, said the Fisher case had been “tailor-made for Justice Kennedy to preserve the right of universities to pursue racial diversity, but not in ways in which skin color” was the determinative factor.

“But I didn’t see this coming, where Kennedy would reverse himself [from Fisher I] and apply a very lenient standard of scrutiny,” Kahlenberg said. “It is inconsistent with what he had written for years and years.”

Guy-Uriel Charles, a law professor at Duke University and a founding director of its Center on Law, Race, and Politics, said that Kennedy’s opinion seemed to reflect the mood of a nation in which race has been found to still matter a great deal.

“There is a majoritarian-ness about Kennedy,” Charles said. “He seems to understand where the country is or where it is going, and he is the person on the court to take it there.”


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