The Supreme Court’s decision in Fisher v. University of Texas was a stunning victory for affirmative action and the ability of colleges and universities to pursue diversity in educating their students. In a 4–3 decision, with Justice Kennedy writing for the majority, the Court upheld a University of Texas plan that uses race as one among many factors in admissions decisions. The ruling means that colleges and universities can continue to use race conscious admissions programs to ensure a racially diverse student body.
In 2003, in Grutter v. Bollinger, the Supreme Court held that colleges and universities have a compelling interest in having a diverse student body and may use race as one consideration, among many, in admissions decisions. Justice Sandra Day O’Connor wrote the opinion for the Court, joined by Justices Stevens, Souter, Ginsburg, and Breyer.
In 2004, the Regents of the University of Texas, seeing a lack of diversity in their undergraduate population, adopted a new admissions policy. Pursuant to Texas state law, about 75 percent of each freshman class would be admitted by taking the top ten percent from every high school in the state. Because of racial segregation in Texas, this would produce some degree of diversity, but not enough to create a “critical mass” of minority students essential for their success and for diversity.
The University of Texas policy provided that about 25 percent of each class would be admitted based on an individualized review of applications. An admissions score was calculated for each student based on two numbers. One was an Academic Index, which was the student’s grades and test scores. The other was a Personal Achievement Index which was calculated based on the assessment of two admissions essays and a consideration of seven factors, one of which was what the student would contribute to racial diversity.
The new policy worked in enhancing diversity. There was a significant increase in applications from minority students and a 20 percent increase in African-American and a 15 percent increase in Latino students attending the University of Texas.
Under Grutter v. Bollinger, this is clearly constitutional; the University of Texas used race as one factor among many in its admissions decisions. The Texas program was upheld by the federal district court and the United States Court of Appeals for the Fifth Circuit. However, the Supreme Court, in a 7–1 decision in June 2013, remanded the case to the Fifth Circuit and held that Texas had to prove that there was no race neutral way to achieve diversity. Justice Kagan was recused from participating because she had been involved in the case as Solicitor General of the United States. The Court stressed that it was not sufficient for a college or university to have a compelling interest in diversity. The school had to show that there was no other means to yield a diverse student body.
In 2014, the Fifth Circuit, in a 2–1 decision, again ruled in favor of the University of Texas, holding that it sufficiently demonstrated the need to use race as a factor in admission decisions to achieve diversity. And to the surprise of many, on Thursday, June 23, 2016, the Supreme Court, in a 4–3 decision, affirmed and upheld the University of Texas program. Justice Kennedy wrote the majority opinion, joined by Justices Ginsburg, Breyer, and Sotomayor. Justice Alito wrote a vehement 52 page dissent joined by Chief Justice Roberts. Justice Thomas wrote a separate dissent. The three dissenting justices left little doubt that they would vote to eliminate all affirmative action.
Anthony Kennedy came on to the Supreme Court in February 1988. From then until June 23, he never once voted to uphold an affirmative action program, not in education or contracting or employment. Yet, his majority opinion and his tone left no doubt that there is, at least for now, a majority to uphold affirmative action.
To be sure, the Court reaffirmed that the burden is on the educational institution to prove the need for diversity and that there is no race neutral way to achieve diversity. The Court found that the University of Texas had met this burden. The Court said that a college or university does not need to quantify what is needed for a “critical mass of minority students” and that Texas did not need to prove that the top 10 percent plan was insufficient to achieve diversity.
Most important, the Court expressed the need for deference to educational institutions. The Court declared: “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. . . . In striking this sensitive balance, public universities, like the States themselves, can serve as ‘laboratories for experimentation.”
Never before had Anthony Kennedy voted to uphold an affirmative action plan. Never before had he written of the need to defer to educational institutions or to allow experimentation in terms of how to achieve diversity.
Colleges and universities still must prove their need for diversity and for affirmative action. Also, the Court stressed a college or university that is engaged in affirmative action has a continuing obligation to reassess the admission program’s constitutionality and effectiveness and must tailor its approach to ensure that race plays no greater role than is necessary to meet its compelling interests. But these, as the Court’s decision indicates, are manageable burdens.
The Court’s decision in Fisher is a huge victory for the education of all students. Diversity in the classroom is essential. I have been a professor for 30 years now and have taught constitutional law in classes that are almost all white and those that are racially diverse. It is different to talk about racial profiling by the police when there are African-American and Latino men in the room who can talk powerfully about their experience of being stopped for driving while black or driving while brown. Preparing students for the racially diverse world they will experience requires that they learn in racially diverse classrooms.
Nor are there realistic alternatives for achieving diversity without affirmative action. Because of historic and continuing inequalities in education, color blindedness in admissions would mean dramatic decreases in the number of African-American and Latino students in colleges and universities across the country. Giving preferences based on social class fails to achieve racial diversity because there are many more poor whites than poor African-Americans and Latinos, even if the percentage in poverty in the latter groups is larger.
Fisher means colleges and universities can continue to engage in affirmative action. By its terms, it is about equal protection under the Fourteenth Amendment and is limited to public colleges and universities. But the Supreme Court has said that the standards are the same under Title VI of the Civil Rights Act of 1964 which prohibits recipients of federal funds from discriminating based on race. Thus, in practical effect, it applies to all colleges and universities in the United States. Fisher is thus truly a huge victory for the education of all of our students.
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Erwin Chemerinsky is Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law.