The Fishing Expedition is Over: Victory for Affirmative Action in Fisher v. Texas!

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Vinay Harpalani, J.D., Ph.D.

Associate Professor of Law

Savannah Law School

Thursday’s decision in Fisher v. Texas II came down exactly 13 years to the day after the U.S. Supreme Court’s 2003 ruling in Grutter v. Bollinger—which created the basic legal framework for affirmative action in university admissions.  And more than eight years after Abigail Fisher filed her lawsuit against the University of Texas at Austin (UT), alleging that its race-conscious admissions policy was unconstitutional, the case is finally over—she lost.  Fisher was truly a fishing expedition: a weak case that went to the Supreme Court once before, only to be remanded to the Fifth Circuit and then reargued before the Court.  The one issue that Justice Anthony Kennedy’s majority opinion and Justice Samuel Alito’s dissent agreed upon was that there was no need for another remand.  While both Justices brought up that possibility during oral arguments in December, everyone now thought that it was time to end this fishing expedition.

Justice Kennedy’s majority opinion affirming UT’s use of race was surprising.  He had never before voted to allow a race-conscious policy, and he dissented in Grutter, which upheld the University of Michigan Law School’s holistic admissions plan.  I expected him to strike down UT’s plan on narrow grounds, and even in the event of an affirmance, I would have expected a ruling that further narrowed the scope of race-conscious university admissions.  But Justice Kennedy’s majority opinion did not do that.  It pretty much affirmed the current Grutter-Fisher I framework for race-conscious university admissions.

In fact, the ruling today really helps universities—it gives them a more detailed blueprint on how to justify their race-conscious admissions policies.  The Court’s Fisher I decision in 2013 made it clear that in order to meet strict scrutiny, a university must demonstrate that its use of race is necessary: that no “workable race-neutral alternatives” would achieve the same educational benefits of diversity.  However, Fisher I did not give further guidance on how universities should do this: it merely remanded the case for proper application of this standard.

In Fisher II, however, Justice Kennedy’s majority opinion discusses how UT met this standard.  He notes that UT “‘conducted months of study and deliberation, including retreats, interviews, [and] review of data.’”  The majority opinion also referenced UT’s overall demographic data, its classroom data on minority enrollment, and its anecdotal evidence that minority students “experienced feelings of loneliness and isolation” on campus.  Everything UT did can serve as a template for justifying race-conscious admissions; universities can now surmise that if they gather and present data similar to UT’s evidence, their policies can survive a legal challenge.  Justice Kennedy did note that UT’s “program is sui generis” because of Texas’s Top Ten Percent Plan.  Nevertheless, this model will still be very helpful to universities across the nation.

Most surprising to me was Justice Kennedy’s statement that UT “had no reason to keep extensive data on the [Top Ten Percent] Plan or the students admitted under it—particularly in the years before Fisher I clarified the stringency of the strict scrutiny burden … [.]”  I would have thought that, given his general aversion to race-conscious policies and his Fisher I emphasis on necessity, Justice Kennedy would have obligated UT to collect and analyze such data.  Justice Alito’s dissent also raised this point.  However, as my colleague Professor Shakira Pleasant astutely pointed out, Justice Kennedy framed the evidentiary scope of this case in narrow terms: he noted that studies conducted since 2008 would have “little bearing on whether petitioner [Abigail Fisher] received equal treatment when her application was rejected in 2008.”  This, combined with the lack of notice to UT to keep extensive data on its Top Ten Percent Plan admits prior to 2013, let UT off the hook for not having more evidence on the record.

The majority opinion also notes that “the Court properly declines to consider the extrarecord materials the dissent relies upon, many of which are tangential to this case at best and none of which the University has had a full opportunity to respond to.”  Whatever his aversion to the use of race, Justice Kennedy was not willing to let UT be blind-sided by every conceivable attack on affirmative action.

The only pause for proponents of affirmative action is that UT’s race-conscious policy had a very small impact: in fact, Petitioner Fisher argued that it was too small to meet the narrow tailoring test because it could not help UT achieve its diversity goals.  The majority soundly rejected this argument, but Justice Kennedy, in his Grutter dissent, had noted that the “modest use of race” was not unconstitutional.  There is a weak but plausible inference that his affirmance derived from the modesty of UT’s plan, and that admissions policies that use race to a greater extent can still be effectively challenged.

Justice Alito’s dissent in Fisher II was interesting and ironic.  He raised several arguments that proponents of affirmative action might well support in other contexts.  For example, Justice Alito referenced “racial and cultural bias” in the SAT and questioned why UT weighted SAT scores as much as it does if the test is biased and/or favors wealthy applicants.  To bolster this critique, he actually cited several amicus briefs that had been submitted in support of UT.  Plenty of other champions of racial justice—most notably the late Professor Derrick Bell—have also highlighted problems with the SAT.  Justice Alito does not explicitly endorse critiques of the SAT (as Justice Clarence Thomas has in the past), but his dissent points to an interesting conundrum for affirmative action at elite universities.

Justice Alito’s dissent also denounces UT for “the baseless assumption that there is something wrong with African-American and Hispanic students admitted through the Top Ten Percent Plan, because they are ‘from lower-performing, racially identifiable schools.’”  Here, Justice Alito again usurps and misapplies an argument from progressives such as Professor Lani Guinier, who have critiqued the classist nature of affirmative action at elite universities.

Additionally, Justice Alito referenced discrimination against Asian Americans, both historically in America and specifically in UT’s admissions plan.  This comment should be viewed in light of pending lawsuits by Asian American plaintiffs against Harvard and the University of North Carolina at Chapel Hill, which are being litigated by the so-called Project on Fair Representation—the same organization that brought Abigail Fisher’s case.  Also, the Asian American Coalition for Education recently file a Title VI complaint against Yale, Brown, and Dartmouth, alleging racial discrimination against Asian American applicants.  Of course, many other Asian American organizations unequivocally support affirmative action.  Nevertheless, the specter of these lawsuits creates another dilemma: how can progressives address “negative action”—the allegation that elite universities hold Asian Americans to a higher standard than all other groups, including White Americans—without disrupting affirmative action.

These issues raised by Justice Alito’s dissent do present future battlegrounds for affirmative action.  The debate over race-conscious university admissions is by no means going away.

But Thursday’s ruling in Fisher II was the clearest victory for affirmative action since that day 13 years ago when Grutter came down.  And with a strong likelihood that the late Justice Antonin Scalia’s replacement will move the Court further to the left, universities can proceed confidently with race-conscious admissions policies, so long as they thoroughly explain and document their reasons for doing so.