The Supreme Court's members generally are too decorous to exclaim "I told you so." But Justice Anthony M. Kennedy stands perched on the edge of an I-told-you-so moment, thanks to the court's decision to take up a challenge to a race-conscious college-admission policy that poses some of the same questions he had accused fellow justices of ducking before.
Justice Kennedy's reaction to the unsettled points of contention in the case, involving undergraduate admissions at the University of Texas at Austin, could determine whether the court imposes substantial new limits on colleges' use of affirmative-action preferences or even bars colleges from giving any consideration to applicants' ethnicity or race.
When the Supreme Court last cleared the way for colleges to use race-conscious admission policies, in its 5-4 ruling in the 2003 case Grutter v. Bollinger, involving the University of Michigan's law school, Justice Kennedy was a minority within the minority. In a separate dissent signed by him alone, he said he did not view the Constitution as precluding colleges from considering race "as one modest factor among others" to promote diversity on campus, which he accepted as a compelling government interest for educational reasons. But, he argued, the court had erred in accepting on good faith the law school's assertions that its policy was narrowly tailored to promote the government's diversity interest, rather than subjecting the policy to strict scrutiny to ensure as much.
"The court's refusal to apply meaningful strict scrutiny will lead to serious consequences," his dissent predicted. The court majority, he said, had missed an opportunity to distinguish between acceptable admission policies and bad ones, and signaled that law schools run little risk of being second-guessed by judges if they adopt admission policies that push legal boundaries.
"By deferring to the law schools' choice of minority admissions programs," he wrote, "the courts will lose the talents and resources of the faculties in devising new and fairer ways to ensure individual consideration." Educational institutions, he said, will be relieved of any pressure "to seriously explore race-neutral alternatives" to affirmative-action preferences. The result, he suggested, will be more controversy over such policies down the road.
Controversy did quickly arise, in the form of a lawsuit challenging a race-conscious admission policy adopted by the University of Texas at Austin in response to the Grutter ruling. A mere nine years after the Supreme Court last considered college affirmative-action policies—far fewer than the Grutter majority envisioned—the court will be revisiting many of the questions that decision left unanswered. It seems unlikely that this time around colleges will end up with as much leeway to consider race and ethnicity as the courts had left them before.
Texas Long Odds
Because of changes in the court's composition, Justice Kennedy is expected to be the swing vote in the case, Fisher v. University of Texas at Austin (No. 11-345).
Having that role will give him significant power to shape its outcome. He could well end up in the same position Justice Lewis F. Powell Jr. found himself in the first time the Supreme Court passed judgment on race-conscious admissions, in the 1978 ruling in Regents of the University of California v. Bakke. Like Justice Powell, who was alone in holding the view that became a central tenet of the Bakke ruling—that colleges could permissibly consider race for educational reasons but not to promote social justice—Justice Kennedy's sway might stem from the impossibility of cobbling together a majority without him.
This much is almost certain: The Supreme Court will not be issuing a Grutter-like opinion in which a majority embraces the admission policies at issue and leaves college affirmative-action policies legally on even firmer ground than they had been before.
Many of the affirmative-action policies and legal positions adopted by the University of Texas run afoul of the views held by Justice Kennedy in Supreme Court opinions issued since Grutter, in his separate Grutter dissent, and in the main dissenting opinion in Grutter, which was written by the late Chief Justice William H. Rehnquist and joined by the other three dissenters: Justice Kennedy and Justices Antonin Scalia and Clarence Thomas.
Justices Scalia and Thomas, who remain on the court, each had written and signed onto Grutter dissents attacking the idea that the law school's consideration of applicants' race even served a compelling government interest.
Chief Justice Rehnquist, who died in 2005, was replaced by Chief Justice John G. Roberts Jr., who had extensive experience as a higher-education lawyer before joining the court but has viewed race-conscious policies with skepticism. Justice Sandra Day O'Connor, who had been critical of race-conscious government policies in previous decisions but ended up writing the Grutter majority opinion upholding the Michigan law school's policies, was replaced after her 2005 retirement by Justice Samuel A. Alito Jr., a reliably conservative member of the court who takes a much dimmer view of race-conscious policies than she did.
Of the four members of the court who have relatively liberal voting records and previously have expressed support for race-conscious policies, Justice Elena Kagan has recused herself from involvement in the Fisher case, a decision that probably stems from her involvement, in her previous position as the U.S. solicitor general, in the Obama administration's submission to the U.S. Court of Appeals for the Fifth Circuit of a brief supporting the University of Texas' position. Justice Kagan's absence leaves just three justices regarded as predisposed to sympathize with the university's position: Justices Stephen G. Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor.
The Supreme Court's decision to take up the Fisher case signals that at least four of its members view the dispute as worthy of judicial review. Even if Justice Kennedy were to have a profound change of heart and wholeheartedly endorse the University of Texas' position, he would find it nearly impossible to find four justices willing to go along with him. About the best outcome advocates of race-conscious admission policies may be able to hope for is a 4-to-4 split decision, which would leave intact a Fifth Circuit ruling upholding the university's policies but would not be regarded as setting any sort of national legal precedent.
Criticizing 'Critical Mass'
Assuming there is no aspect of Texas' policy that even liberal justices find themselves unable to support, and the court breaks as might be predicted based on the justices' ideological leanings and past decisions, the more probable outcome is a 5-to-3 ruling striking down the university's policies as not being narrowly tailored, and significantly narrowing the court's definition of what sorts of race-conscious policies are acceptable.
Among the key questions in the case is whether the university was constitutionally precluded from considering applicants' race or ethnicity because it had achieved sufficient levels of diversity in a race-neutral manner, through a state law guaranteeing students in the top 10th of their high-school classes admission to any public college in the state.
In the Grutter case, Justices Kennedy, Scalia, and Thomas all expressed exasperation at the majority decision to take the law school at its word in declaring administrators there would "like nothing better than to find a race-neutral admissions formula."
In their brief asking the Supreme Court to take up the Texas case, the lawyers for the plaintiff—Abigail Noel Fisher, a white applicant whom the university rejected in 2008—argued that the Fifth Circuit had similarly erred in relying too heavily on the university's "good faith" assertions that it could not achieve sufficient levels of diversity on the campus through race-neutral means, such as the state's top-10-percent plan.
In an interview on Wednesday, Francisco G. Cigarroa, chancellor of the University of Texas system, echoed the Austin campus's argument that the state's class-rank-based admission guarantee has produced inadequate levels of diversity on the flagship campus, and now accounts for such a large share of the institution's entering freshman class that it has robbed the university of discretion to admit many students who possess great talent in certain fields but did not graduate close enough to the top of their high-school class.
Closely related to the debate over the adequacy of the top-10-percent plan is the question of exactly how much racial and ethnic diversity the Austin campus needs.
Just as the Michigan law school did in Grutter, the University of Texas at Austin is arguing that it needs to consider applicants' race to achieve a "critical mass" of minority students on the campus. But the concept of a "critical mass" articulated by the Michigan's law school—and accepted by the Grutter majority over the protests of the dissenters, who denounced it as a veiled racial quota—differed somewhat from the concept embraced by the University of Texas.
Michigan's lawyers defined a critical mass as, essentially, enough minority students to ensure that white students heard a variety of black and Hispanic viewpoints, and that black and Hispanic students felt free to disagree with each other and under no obligation to somehow represent their racial or ethnic group in classroom discussions. The law school generally believed it had enrolled such a critical mass when black, Hispanic, and Native American students accounted for 10 percent to 17 percent of its enrollment.
At the University of Texas at Austin, black and Hispanic students account for about a fifth of enrollment, largely because the state's class-rank-based admission guarantee causes it to take in the top students of high schools in low-income or heavily minority areas. The university argues that the levels of diversity documented by the Michigan law school in Grutter are insufficient for it, especially because well over half of the state's high-school graduates are Hispanic or black. It also has argued that it needs to take in enough minority students that the result will be racial and ethnic diversity at the classroom level.
The lawyers for Ms. Fisher have accused the university of seeking to have an enrollment that reflects the state's population—an objective more closely tied to the overall goal of proportional representation, which was outlawed under Bakke, than the overall goal of educational diversity articulated in the Bakke decision and reaffirmed in Grutter. They argue that the university's goal of ensuring classroom diversity cannot be achieved without giving much more weight to race than the Bakke or Grutter decisions envisioned.
Along with siding with the University of Texas in a brief submitted to the Fifth Circuit, the Obama administration has issued guidance taking an expansive view of the educational benefits of diversity and giving colleges broad leeway in determining whether they need to consider applicants' ethnicity or race to achieve desired diversity levels. The guidelines suggest that the administration does not plan to engage in second-guessing colleges' judgments on questions such as whether race-neutral approaches will achieve desired diversity levels without sacrificing a component of their educational mission, or priorities such as academic selectivity.
With the Supreme Court expected to hear the Fisher case in the fall, just before the November elections, college affirmative action is almost certain to emerge as an issue in this year's presidential race.
The Gutting of 'Grutter'?
The lower court's rulings in the Texas case suggest how divisive the issue is. Although a three-judge panel of the Fifth Circuit last year unanimously upheld a district-court decision in the university's favor, one of the three judges, Emilio M. Garza, protested he was doing so only because he felt his hands were tied by the Grutter precedent, which he criticized as a poor decision having little basis in concrete evidence of the educational benefits of diversity.
The full Fifth Circuit was even more bitterly divided in voting 9 to 7 last year not to rehear the case. Its chief judge, Edith H. Jones, was joined by four others in issuing a dissent that said the three-judge panel had actually strayed from the requirements of Grutter by showing too much deference to the views of college administrators, failing to consider the success of the state's top-10-percent plan as a race-neutral alternative, and accepting the university's argument that it needed diversity at a classroom level.
There is at least some chance that a Supreme Court majority could go beyond considering the narrow-tailoring concerns raised by the full Fifth Circuit, and hand down a decision that heeds the concerns of Judge Garza and overturns Grutter. In friend-of-the-court briefs urging it to take up the case, some critics of affirmative action had argued that the Grutter decision was a mistake, and that educational research published in the wake of that decision has undermined the foundation for the Grutter majority's ruling, the belief that race-conscious admission policies have clear educational benefits.
If either a reconsideration of the research on diversity or impatience with how much leeway colleges have assumed under Grutter prompts Justice Kennedy to question the wisdom of allowing colleges to give any consideration to race, the era of race-conscious college-admission policies may be over.