Thursday, June 23, 2016

In Fisher II Justice Kennedy Finally Puts His Vote Where His Rhetoric Was All Along

by Michael Dorf

At the end of a Supreme Court term, the law clerks put on a show in which they depict the justices, gently (or not so gently) poking fun at their bosses' personal foibles and jurisprudence. These are not public events and so what we know about them comes from leaks from a very unleaky institution. Nevertheless, a story is told that one year the law clerk portraying Justice Sandra Day O'Connor sang a song to the tune of the Rolling Stones' "Beast of Burden" with the lyrics "I've never seen an undue burden." The idea was that although Justice O'Connor's concurring and dissenting opinions in abortion cases had suggested that abortion restrictions would be invalid if they constituted an "undue burden," she had voted to uphold every abortion restriction to come before her. And that was true, until 1992 when she joined with fellow Republican-appointed Justices Anthony Kennedy and David Souter to co-author an opinion (joined in key parts by two other Republican-appointed Justices, Harry Blackmun and John Paul Stevens) striking down one provision of a Pennsylvania abortion law as an undue burden. We will find out next week whether the version of the undue burden test adopted in that case--Planned Parenthood v. Casey--invalidates the Texas law being challenged on the ground that its health justifications are pretextual at best. But for now I want to note that what happened in Casey for Justice O'Connor was a put-up-or-shut-up moment. Having led Court watchers to think that she was at least potentially open to retaining abortion as a constitutional right, Justice O'Connor finally got off the fence and proved it.

While we wait for the Texas abortion case to come down (probably Monday of next week), let us turn our attention to another Texas case. Not the anti-climactic non-decision in the immigration case that leaves millions of undocumented immigrants in the shadows until there is a ninth justice appointed by President Clinton or President Trump's storm troopers round them up, but the dramatic ruling this morning in Fisher v. University of Texas at Austin (Fisher II).

With Justice Kagan recused in Fisher II, the Court ruled 4-3 that the limited use of race in admissions by UT is constitutionally permissible. The majority opinion in Fisher was written by Justice Kennedy, and the case was for him with respect to affirmative action what Casey was for Justice O'Connor with respect to abortion (although Casey was also that for Justice Kennedy). In prior affirmative action cases--especially in his dissent in Grutter v. Bollinger and his concurrence--concurrence in the judgment in Parents Involved in Community Schools v. Seattle School Dist. No. 1--Justice Kennedy had said that he accepts that diversity is a compelling interest in education and that he was unwilling to treat the Equal Protection Clause as proscribing all use of race by government. But like Justice O'Connor with respect to abortion in her pre-Casey days, Justice Kennedy sometimes gave the impression that he was all talk, because before today, he voted to strike down every race-based affirmative action program to come before him as a Justice.

Before today. Justice Kennedy's opinion in Fisher II will no doubt be read as narrow, and in important ways it is. He warns at the end that UT should not take the Court's decision as authorization to use its existing program indefinitely. The evaluation and re-evaluation of the need for race to achieve the university's goals that play a crucial role in rejecting Fisher's challenge must continue. Other colleges and universities are now on notice that they too may need to be pro-active in continually reassessing the use of race in their admissions programs.

That said, Justice Kennedy's opinion is, in many ways, quite broad. He repeatedly points out that the "Ten Percent" program in Texas makes the case unusual. (Quotation marks indicate that with a 75% cap on enrollment under the program, it's now more like a seven percent program.) Perhaps more importantly, Justice Kennedy favorably cites Justice Ginsburg's observation in the first Fisher case (Fisher I)  that while formally neutral, the percentage plan was “adopted with racially segregated neighborhoods and schools front and center stage.” This is an important signal that the Court will not require state universities to adopt percentage plans or to try them before resorting to holistic review that includes race.

In addition, Justice Kennedy recognizes how the Court's prior cases set up a seeming Catch-22. On the one hand, if race is too big a factor, then the program is not narrowly tailored. On the other hand, if its use only makes a small difference, then the program is also not narrowly tailored. Justice Kennedy rejects this heads-I-win-tails-you-lose rule, treating the relatively modest use of race by UT as appropriate and as evidence that UT really is trying to achieve diversity through race-neutral means as much as possible. Likewise, Justice Kennedy does not fault UT for failing to precisely quantify such goals as diversity or critical mass, rightly recognizing that this too is a trap, given how unfavorably the Court's prior cases treat any effort to convert the benefits of racial diversity into a number.

Justice Alito is thus not wrong in his dissent when he says that UT failed to meet an apparent requirement of Fisher I.  Justice Alito writes: "The University has still not identified with any degree of specificity the interests that its use of race and ethnicity is supposed to serve." But given that this is a trap, to the extent that Fisher I required such "specificity," i.e., quantification, Justice Kennedy is surely right in Fisher II to move away from such a requirement. Justice Alito's conception of a specificity requirement is really nothing more than a way to disguise a rule that categorically disallows race-based affirmative action. But if that's the point, then he (and CJ Roberts) ought to say so expressly, by joining Justice Thomas, whose separate dissent calls for categorical color-blindness.

To be fair, although Justice Alito and CJ Roberts have previously purported to apply Grutter, they have never said that they think it was rightly decided. Justice Kennedy did, after a fashion. Although he dissented in Grutter because he thought that the University of Michigan Law School's program was not actually narrowly tailored, he agreed in principle that diversity in higher education is a compelling interest that can justify a narrowly tailored program of race-based affirmative action. He paid what was at least lip service to that idea, which has now been part of our law for 38 years (since the Bakke case). Today, Justice Kennedy showed that it was more than lip service. His Fisher II opinion puts his vote where his rhetoric was all along.


Joe said...

"These are not public events and so what we know about them comes from leaks from a very unleaky institution."

Not completely for at least two people here.

Howard Wasserman said...

Whole Women's Health is going to be a second put-up-or-shut-up moment for Kennedy, who has not found any abortion restriction to be an undue burden since Casey.

Hashim said...

Mike -- why is it a "trap" for a school to have to concretely identify the alleged minority admissions percentage/range that would constitute the alleged critical mass that creates the alleged educational benefits that the school claims are the compelling interest justifying racial diversity? If, for example, the purported educational benefits of diversity do not exist at 4-8%, but do exist at 12-16%, why isn't it perfectly appropriate to require a State to stop using race once it is around 16%? That's not a "racial quota," because the State wouldn't be seeking racial balance for its own sake, but for the underlying educational benefits. And it would *avoid* the Goldilocks "trap" you identify: while it would be impermissible to use race only a little if the school was already w/in the 12-16% range, it wouldn't be unconstitutional to use race for a lot of people if necessary to get to the 12-16% range (assuming that non-racial criteria weren't too seriously subordinated, such that it could still be deemed a holistic process), but it would be unconstitutional to use race to go beyond the 12-16% range.

Assuming, as Kennedy claims, that strict scrutiny applies, what good reason is there not to require the type of precise identification of the compelling interest that would permit such narrow tailoring? Neither your post nor Kennedy's opinion gives one.

And there's an obvious reason why: these purported educational benefits are simply a transparent pretext to seek racial diversity for its own sake. No one at these schools has any idea at all what level of diversity is needed to achieve the purported educational benefits, because they couldn't care less.

rhj1954 said...

FLIPPER lives.

Michael C. Dorf said...

Hash: At least since Gratz, the affirmative-action skeptics (including Justice Kennedy) have treated ANY attempt at quantification as impermissible, even when it is not a quota in any meaningful sense. And indeed, there's a logic to that: Even percentage "goals" risk putting aside the individualized attention that Powell's Bakke opinion (the law since Grutter) demands.

I also think you are far too dismissive in your reference to "racial diversity for its own sake," what Justice Thomas has called racial "aesthetics." Nobody who favors affirmative action favors "racial diversity for its own sake." Some people favor it as a means of redressing societal discrimination, a purpose Powell ruled out in Bakke. Others favor it because they believe the commonsensical proposition that people from different backgrounds will have different experiences and different perspectives. And precisely because this isn't a one-to-one correlation (i.e., not all whites have the same experience and views, nor do all Latinos, etc.), one will be hard-pressed to say that the intellectual/social diversity benefits correspond to any particular percentage of a class.

Eric Segall said...

Hashim wrote: "what good reason is there not to require the type of precise identification of the compelling interest that would permit such narrow tailoring?" None. Strict scrutiny shouldn't apply but if it does, out-in-the open quotas should pass easier than behind closed doors faux quotas. But of course the Court shouldn't be in this business at all if the state's goals and means are reasonable or maybe reasonable +.

Hashim said...

Mike: while some affirmative-action skeptics have treated any attempt at quantification as impermissible, not all such skeptics have. And most importantly for present purposes, Fisher's lawyers didn't. So I think Kennedy needed to have some explanation for why quantification along the lines they and I suggested above would be impermissible.

And I don't understand the explanation you propose: while percentage goals *may* risk putting aside the individualized attention Grutter demands, they don't *necessarily* have that effect if applied properly, and strict scrutiny exists precisely to determine how they are applied *in fact.* Courts can look to see what the goal was, how far away from the goal the State started, and how much the State subordinated other admissions criteria to achieve the goal -- based on that, courts can determine whether race was used holistically to achieve a concrete educational goal, or instead used more than needed to achieve the goal or at the expense of all other goals (like minimal academic quality, etc.). All of that is conventional narrow-tailoring analysis. By contrast, if the State doesn't even have to articulate any goal at all, then how can it demonstrate whether the consideration of race is narrowly tailored to achieving the purported educational benefit? If you don't what level of racial diversity corresponds to the educational benefit, then you can't know whether the use of race is well tailored or poorly tailored. And insofar as you're suggesting that the percentage range corresponding to the alleged benefits is unknowable, then the State should lose under strict scrutiny, because it's the one who has the burden of showing that its consideration of race is narrowly tailored to achieving educational benefits.

As for "diversity for its own sake," I do think there are plenty of people who support affirmative action simply because they think that racial proportionality is an end in and of itself for reasons of "equality," at the group rather than individual level. But even if you're right that they're all instead focused on redressing past discrimination, etc., that's really besides the point here, which is that the purported "educational benefits" of diversity are a pretext intended to dupe Kennedy while actually furthering other goals that he doesn't think are legitimate. If anyone honestly cared about the "educational benefits" for their own sake, then they'd try to figure out what level of racial diversity brought those benefits, in order to avoid using race too much or too little. But universities won't, or can't, engage in this inquiry, because what they really care about is having enough racial minorities around that everyone feels happy about themselves, other than the kids who are on the wrong end of the racial discrimination (and perhaps the supposed "beneficiaries" of this discrimination, if Sanders' mismatch theory is correct).

Hashim said...

PS. Imagine that a State said that it had a compelling interest in preventing white flight from public housing -- namely, the benefits of diversity from integrated housing -- and that white flight occurred when minorities exceeded a "critical mass" of the building, such that the State would consider race in providing housing and use it as "plus" factor for whites as a part of a "holistic" process. Is it remotely conceivable that a court would allow the State to make that defense without even purporting to identify what the alleged "critical mass" was? Of course not. And there's no reason to treat affirmative action differently if, as precedent squarely holds and Kennedy purports to believe, racial discrimination against whites and asians is subject to strict scrutiny just as much as racial discrimination against blacks and Hispanics.

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