By Mike Dorf
How should today's decision in the Fisher case be scored? Based on what might have happened, surely it's a big win for defenders of race-based affirmative action. The Court did not, after all, overrule Grutter v. Bollinger. It did not ban affirmative action in higher education. It did not--as some who filed as amici worried it might--require that percentage plans be adopted throughout higher education, even in contexts, such as law school admissions, where they have no realistic prospect of working but would cause serious harm.
No doubt many liberals are worried by the Court's statement that "the parties here do not ask the Court to revisit [the] aspect of Grutter’s holding" that found diversity to be a compelling interest. But I'm not worried about that. Justice Kennedy himself agreed that diversity is a compelling interest in Grutter, and Chief Justice Roberts at least accepted that the Court's prior cases established diversity as a compelling interest in the Parents Involved case. Notably, only two Justices in Fisher indicated that they believe diversity is not a compelling interest: Justices Scalia and Thomas. If I had to bet, I'd say that Justice Alito and CJ Roberts probably would conclude that diversity is not a compelling interest if considering the matter de novo, but I doubt that they would overrule Bakke and Grutter to get there. And because they know Justice Kennedy wouldn't, they almost certainly wouldn't vote to grant cert in a case that directly poses the question of whether to overrule the diversity-is-a-compelling-interest holding of Bakke/Grutter.
So what did the Court do in Fisher? Justice Ginsburg's lone dissent says that it simply compounded an error made in Grutter and its companion case, Gratz. In those cases, she argued that the Court had it backwards in rewarding universities for disguising their use of race. Although she voted to uphold both the undergraduate and the law school admissions procedures then, she thought that the undergraduate program--which expressly awarded points based on race--had the virtue of transparency. She continues that theme today. She also echoes a point that various scholars have made (and that Pam Karlan and I made in our Grutter brief for the AALS:) the percent plans shouldn't be deemed race-neutral because they rely on segregation in housing.
I don't disagree with the substance of Justice Ginsburg's dissent but I also don't share her fears here. As I read Justice Kennedy's majority opinion, the key error of the Fifth Circuit was its statement that it would defer to the educational professionals at the University of Texas in evaluating their decision of how best to achieve diversity. The Court says today, correctly, that Grutter only said that educational professionals receive deference in their judgment that diversity is a compelling interest. The application of strict scrutiny remains a task for the courts to apply de novo.
Accordingly, the battle now shifts to the question of how strictly to apply strict scrutiny in these cases. Justice Kennedy's opinion cites both affirmative action cases and traditional discrimination cases, suggesting that the standard is the same in the two categories of cases. And indeed, the Court has often said that. But it has also indicated that strict scrutiny will be more forgiving in affirmative action cases. The result is that a lower court that recites the strict scrutiny standard in its strict form will probably be given considerable latitude either to uphold or invalidate affirmative action programs. In that sense, the action now shifts to the lower courts--and perhaps to the political fight between the President and Republicans in the Senate over whether the current Administration will have the opportunity to begin to shift the balance on those lower courts.