Three Thoughts on Fisher

As you've probably heard, the Supreme Court granted cert Tuesday in Fisher v. University of Texas at Austin, an affirmative action in admissions case coming out of the Fifth Circuit. I won't rehash the commentary and the prognostication that have marked the last three days (some links at the bottom), but three thoughts leap to mind.

First, I don't understand why anyone finds this surprising. O'Connor is... I don't know, doing whatever it is retired Supreme Court Justices do, and Alito is sitting in her old seat. The Grutter coalition is long gone. It was only a matter of time before the five justices on the court who think Grutter was wrongly decided found an opportunity to overturn it. Second, let's just say it: Grutter is gone. Third, I think affirmative action proponents who seem sure the sky is falling have jumped the gun. Kennedy hasn't given us any reason to think he'll set fire to race-conscious admissions with the intent of burning it to the ground. Quite the contrary.

This was obviously was going to happen


Any court watcher who says this surprises them hasn't been paying enough attention. Kennedy, Thomas, Rehnquist and Scalia all dissented in Grutter. Roberts replaces Rehnquist, and Grutter's author - O'Connor - was replaced by Alito. We can all count to five. It's almost as if people forgot that Kennedy dissented. Since January 31, 2006, the conservative wing of the Court has had the votes to overturn Grutter. I wrote in December 2008 - more than three years ago (paper available on request) - that Grutter's clock was ticking.  Tuesday's grant of cert isn't when this news should have broken; the bell tolled last June when the Fifth Circuit denied an en banc rehearing of Fisher. That's when the prognosticators should have sounded Grutter's death knell.

Why proponents should be worried


Because Grutter is toast. When Fisher comes down, the Michigan Law School admissions practice upheld in 2003 will be unconstitutional. Michigan argued that it didn't use a quota system, but instead sought a "critical mass" of minority students such that each would feel part of a community, and would not feel like the "token" voice of their particular demographic. Kennedy never bought this. He joined Rehnquist in his belief that Michigan's "critical mass" argument was a sham and further noted that "the Law School has not demonstrated how individual consideration is, or can be, preserved at this stage of the application process given the instruction to attain what it calls critical mass."


Attention to specific numbers, or a range that necessarily has a floor, must override the constitutional requirement for individual consideration at some point in the application process. As the number of remaining spots diminishes - and as the Law School kept a running tally of minority admits - Kennedy argued that race must become an overriding factor in admission, insulating students from individual consideration of their applications. 


Arguments that a school seeks a non-quota "critical mass" of minority students won't pass constitutional muster anymore. Not for Kennedy. Proponents of race-conscious admissions will need to leave that one at the door. 


Why proponents shouldn't be THAT worried


So far I haven't said anything new, so here's the meat of my opinions on this case:


Kennedy's dissent in Grutter is by no means an effort to eradicate or eviscerate all attempts at race-conscious admissions practice. In fact, his dissent shows exactly how schools may permissibly take race into account. The "Amherst Brief," filed on behalf of 29 small private colleges (including Pomona College, my own alma mater; go Sagehens!), lays out an admissions policy that Kennedy cites with evident approval. If the Amherst Brief is any guide - and I think it should be, if only because I think Kennedy thinks it should be - a school will have to do or show two things in order to take race into account in its admissions policy. As noted, the brief was filed by private schools, but the model should work just as well for public institutions. 


First, a school cannot keep a running tally of minority admits. Aiming for a number, or even keeping track of the number, runs the risk that race may - at some point - become the "overriding factor:" Kennedy's concern with the Michigan Law approach. This is not to say that admitting a consistent number of minority students from year to year is, by itself, enough to disqualify a process. "It makes no sense," says the Amherst Brief, "to say that our electoral process has a 'quota' for Republicans (or Democrats) because their vote tallies have varied narrowly in the last few elections between 48% and 52%."


This, by itself, is almost certainly not enough. A school will also have to show, in some detail, how it protects individual consideration throughout the process. Amherst and its other amici state that "the same evaluative criteria are used for all applicants regardless of race or ethnicity." These criteria place emphasis on an individual's ability to contribute to and benefit from the collegiate environment. Consider the Amherst Trustees' Statement on Diversity:


“We will continue to give special importance to the inclusion within our student body, our faculty and our staff of talented persons of person from groups that have experienced prejudice and disadvantage. We do so for the simplest, but most urgent, of reasons; because the best and brightest people are found in many places, not few; because our classrooms and residence halls are places of dialogue, not monologue; because teaching and learning at their best are conversations with person other than ourselves about ideas other than our own.”


Minority students and other "disadvantaged" students aren't sought for their disadvantages per se, but for their individual ability to bring diverse viewpoints and backgrounds to the collegiate atmosphere, improving the learning experience of the whole student body. 


Which brings us to another reason to think that Kennedy will leave ample room for race-conscious admissions practices even as he votes to narrow Grutter. Kennedy seems comfortable with some degree of deference to colleges and universities in how they define their institutional mission and how they construct their student bodies. Not to dump another huge quote, but, well, here's another huge quote from Amherst:


“There are sound educational reasons (and others as well) why higher education institutions of all sorts – not only those subject to legislative direction, but also private, highly selective ones – have virtually without exception concluded that many different kinds of diversity, including racial diversity, best create the circumstances for the learning required in the 21^st century, and that the schools should therefore try to obtain that diversity… The point is so basic, and the agreement of educators is so broad, that amici need not argue it at length.”


I think that despite Kennedy's obvious belief that a university may not have unfettered discretion as to how these goals are achieved, he's more or less fine with this snippet from the Amherst Brief. Scalia, Thomas, and Rehnquist weren't so keen on grants of discretion (and I couldn't say how Roberts or Alito will feel about this narrow detail, though I have a guess), but Kennedy's dissent made it quite clear that a college - even a public college - could take race into account and still pass under strict scrutiny so long as they can demonstrate that individual consideration is protected throughout. The academy is in near unanimous consent that diversity in a student body is a compelling educational/government purpose, and the Amherst Brief outlines an approach that is narrowly tailored to those ends. 


Some predictions


Let's assume Kagen recuses herself, as it seems she will. That leaves two main options, as I see it. First, Kennedy could convince the conservative bloc to vote with him to narrow Grutter rather than burn it down and author a 5-3 opinion. The other option is a fractured opinion like the 4-1-4 decision in Bakke where Powell's middle ground ruled the day (and heavily influenced Grutter). Here, we get a 4-1-3 split, with the conservative bloc voting to eliminate race conscious admissions entirely, the liberals (minus Kagen) voting to uphold Grutter, and Kennedy whittling away in the middle.


My guess? We get a five justice majority for which Kennedy writes, narrowing Grutter. The conservative bloc concurs in the result, but we get Scalia, Thomas, and maybe Roberts writing separately to say they would strike it to the foundations. Breyer writes for a three-justice dissent... and what the heck, we get a Sotomayor opinion thrown in for good measure. 


Time will tell. 


Links:


The New York Times write-up on Fisher
The Chronicle of Higher Education piece on Fisher
The Amherst Brief from Grutter
Summation from SCOTUSblog