Justice Kennedy's Do-Over

Later this year, the Supreme Court will hear arguments in Fisher v. University of Texas. Fisher will be the latest higher education affirmative action case argued before the Court. The timing is curious. Grutter was just decided in 2003. In it, the Supreme Court upheld a race-conscious admissions plan at the University of Michigan Law School. So why are we back here so soon? Why is the Supreme Court set to review a race-conscious admissions plan that aligns so closely with Grutter precedent? The answer to those questions likely lies in Grutter itself, specifically the dissent of Justice Anthony Kennedy.

Justice Kennedy lodged strong objections to the majority’s scrutiny of the admissions plan reviewed in Grutter. The judicial standard for reviewing race-conscious apportionments of public benefits is strict scrutiny. Under strict scrutiny, race-conscious admissions plans at public institutions like the University of Michigan are constitutional only if "they are narrowly tailored to further a compelling governmental interest." So the standard essentially has two exacting requirements: a compelling public interest and a narrowly tailored means of furthering it. One without the other renders the plan in question unconstitutional.

Kennedy has twice affirmed his view that diversity in public education can amount to a compelling public interest. In his Grutter dissent, he references "a university’s compelling interest in a diverse student body." He later extended this view to the K-12 level in Parents Involved in Community Schools. In that case, Kennedy joined with the conservative wing in striking down race-conscious school assignment plans in Louisville and Seattle. But while the other conservative justices declined to deem diversity in K-12 a compelling interest, Kennedy asserted, "Diversity, depending on its meaning and definition, is a compelling educational goal." So, for Kennedy, the race-conscious plans in both Grutter and Parents Involved suffered not from lack of compelling interests, but from lack of narrow tailoring. It is worth nothing that because of the vote split among the justices in Parents Involved, Kennedy’s concurrence is the controlling decision.

But it is his Grutter dissent that gives us the best clue as to why the Supreme Court agreed to hear Fisher. The four dissenting justices were deeply troubled by the degree of deference afforded Michigan Law. Justice Kennedy was so troubled that he wrote a dissent, separate from the one he signed onto with the other conservative justices. He took particular issue with the concept of "critical mass." Critical mass was defined as "a number that encourages underrepresented minority students to participate in the classroom and not feel isolated." Michigan Law argued that critical mass was central to achieving its educational objectives, but it did not identify numbers or percentages that signified having reached such mass. (Critical mass is an important subtext in Fisher because Texas is arguing that the purpose of its consideration of race in admissions is to cure woefully inadequate classroom diversity.) The majority accepted the law school’s definition of critical mass, and deemed constitutional the manners in which it is sought in the admissions process.

The dissenting justices, however, felt that the goal of critical mass was a farce — or as Justice Kennedy termed it, "a delusion." They felt that the admissions plan was actually an unconstitutional quota system. Justice Kennedy, in his separate dissent, argued that certain racial demographic consistencies and correlations demonstrated that the law school sought "numerical goals indistinguishable from quotas." (For example, the dissent highlighted data showing close correlations between the percentages of blacks, Hispanics, and Native Americans in the applicant pool and their corresponding percentages among those admitted.) And while he accepted Michigan Law’s assertion that its educational objectives required diverse students, he felt that the deferential review of the law school’s methods of achieving diversity fell far short of strict scrutiny.

Judicial deference to educational decisions is about as old as U.S. education itself. Often termed academic abstention, courts have historically been loath to question the judgments of professional educators. Thus, colleges and universities enjoy broad autonomy in making decisions deemed "academic" in nature, including those relating to admissions.

But it is on this issue of deference where we could see Fisher diverge from Grutter. The Grutter majority concluded, based on the law school’s descriptions, that the race-conscious admissions process bore "the hallmarks of a narrowly tailored plan." The dissenting justices, however, felt that strict scrutiny required the law school to not only describe the process, but to also provide explanations for outcomes they found suspicious. In addition to the consistencies and correlations Kennedy found troubling, the dissenters took issue with what they deemed differential treatment of different racial groups. They wanted the law school to explain why black applicants were admitted at higher rates than Hispanic applicants. Essentially, they questioned why critical mass seemed to mean different things for different groups. And they chastised the majority for its "unprecedented" deference.

The Supreme Court is a little more conservative today than when Grutter was decided. And given the ideological split, Justice Kennedy will likely cast the deciding vote in Fisher. It is safe to assume that the University of Texas will carry a heavier burden in showing that its consideration of race in admissions passes constitutional muster. But more significantly, Fisher will allow the conservative wing of the Supreme Court to re-do Grutter in a less deferential image.

The district court judge who originally dismissed the Fisher case remarked, "as long as Grutter remains good law, UT’s current admissions program remains constitutional." We will soon see to what extent Grutter will remain good law. And more importantly, we will soon know to what extent, and under what circumstances, public colleges and universities can pursue compelling educational objectives through the use of race-conscious admissions practices.