Fisher v. UT and the Baby Bear Interpretation of Strict Scrutiny

By Mike Dorf

There's an old joke that is retold by Woody Allen (as Alvy Singer) in Annie Hall:  Two elderly women are at a Catskill mountain resort, and one of them says, "Boy, the food at this place is really terrible." The other one says, "Yeah, I know.  And such small portions."

Allen uses the joke as a metaphor for life, but it also bears on a peculiar aspect of Fisher v. University of Texas, which was argued in the Supreme Court last week.  One of the arguments advanced by the plaintiff is that the university does not need to supplement its formally race-neutral admissions procedures with a partly race-based admissions procedure because the race-based procedure only adds a small amount of racial diversity to the entering class.  To which one wants to say: Isn't the fact that the university minimizes the use of race a virtue of the program, rather than a vice?

During the oral argument in Fisher last week, Justice Kennedy in fact pursued exactly this line of questioning with the plaintiff's lawyer.  Here is Justice Kennedy, talking to Fisher's attorney Bert Rein (with my having eliminated some extraneous material): 
KENNEDY: You argue that the University's race-conscious admission plan is not necessary to achieve a diverse student body because it admits so few people, so few minorities. And I had trouble with that reading the brief. I said, well, if it's so few, then what's the problem? Then let's assume that it resulted in the admission of many minorities. Then you'd come back and say, "oh, well, this shows that we were probably wrongly excluded."  I see an inconsistency here.  Are you saying that you shouldn't impose this hurt or this injury, generally, for so little benefit; is that the point?
Mr. Rein endorsed Justice Kennedy's proposed answer to his own question and then offered a second answer, which was really parasitic on the first: He said that the university could achieve the same level of diversity with race-neutral means.

Is that a persuasive answer?  I'm not sure.  Justice Kennedy is surely right that under the test that the plaintiff proposes, there is a damned-if-you-do-damned-if-you-don't quality to the situation faced by a university.  But that may be a general feature of strict scrutiny, which, at least in principle condemns suspect means that are either over-inclusive or under-inclusive.  Consider RAV v. City of St. Paul, a case in which the majority, per Justice Scalia, struck down a hate-speech ordinance as applied to cross-burning on the ground that the ordinance impermissibly singled out a content-based category of "fighting words" for criminalization.  That prompted Justice White, in a concurrence that was a dissent on this point, to object that under the majority's view, the City of St. Paul's ordinance would have survived First Amendment scrutiny if only it forbade more speech--a proposition that Justice White apparently believed was self-evidently mistaken.

I share Justice Kennedy's concern in Fisher and Justice White's concern in RAV, but I think that they both misapprehend how these odd results simply follow logically from doctrinal tests that condemn laws on grounds of under-inclusiveness no less than on grounds of over-inclusiveness.  And insofar as the condemnation of some forms of under-inclusiveness simply gives effect to an aspect of the principle of equality, their concern is misguided.

Equality principles--whether under the Fourteenth Amendment's Equal Protection Clause, the First Amendment's prohibition on content-based regulations of speech, or other doctrines--demand a sort of "Baby Bear" approach: Too much is problematic; too little is problematic; the Constitution demands that if the problematic criterion is to be used, it must be "just right."  Or, to use the Court's metaphor of narrow tailoring, if the suit of clothes is too loose or too tight, it will fail.

So, in the end, although I believe that the University of Texas should prevail against Fisher's challenge, I think the irony that Justice Kennedy observes is simply an irony and not a contradiction.  For my further thoughts on the oral argument--zeroing in on the new prominence of the "critical mass" rationale for affirmative action -- check out my latest Verdict column.