Today, the Supreme Court decided that the University of Texas’ affirmative action program is constitutional. This much anticipated decision in Fisher v. University of Texas at Austin is the second time the Court reviewed this particular program. In Fisher I, the liberal and conservative wings of the Court struck an unusual compromise, sending the case back to the U.S. Court of Appeals for the Fifth Circuit and delaying a final decision that would ultimately decide its fate.
Today’s alignment of votes for Fisher II was not surprising. Justice Kennedy declared in Fisher I that the basic rationale for affirmative action was not in question. But he felt that its methods of implementation at the University of Texas had not been sufficiently reviewed by the lower court. Several liberal justices joined him on this point because it put off a final decision—as did several conservatives, albeit for different reasons.
The Texas case was unique because the university had two separate—but related—methods for increasing the enrollment of students of color. The Top Ten Percent Plan (TTPP) was created by the legislature in 1997, after a federal district court decision overturned affirmative action in the state. The TTPP requires the university to accept the top 10 percent of students graduating from every Texas high school as a way to increase the chances of enrolling people of color. Although there was no reference to race in the plan, the demographics of Texas high schools all but guaranteed a certain percentage of students of all backgrounds would be admitted to the flagship campus at Austin.
But university officials decided that this wasn’t enough. Working from the premise established in Grutter v. Bollinger in 2003 that all students benefit from a diverse student body, they set out to augment the TTPP with a more traditional affirmative action admission program. This system recognized student ability beyond test scores and GPAs, and admitted students who declared an interest in schools and majors that were broader than those that the TTPP students typically enrolled in. The goal was simple: Spread the benefits of a diverse student body as broadly across the many different schools and disciplines on the campus as possible.
It was this race conscious effort to increase the enrollment of people of color that was the target of Fisher I and Fisher II. In the first case, Fisher’s lawyers argued that given the TTPP’s impact on enrollment, any additional affirmative action plan was both unnecessary and unconstitutional. Originally they hoped to chip away at affirmative action by reducing it to a race neutral, legislatively approved program, knowing that few if any states would enact similar legislation. When that tactic failed in Fisher I, they shifted to attack the basic rationale from Grutter.
While the specific issue in Fisher II was whether the Texas plan complied with the requirement that it be narrowly tailored so as not to use race beyond its limited permissible function, the plaintiff also argued that the shear complexity of the Texas plan made legal compliance impossible and that its basic rationale was constitutionally flawed. Today’s decision firmly rejects that line of attack.
In most respects, today’s decision holds the line. It doesn’t open any new ground to advance or diminish affirmative action. The Court was clear that affirmative action in higher education could continue, as long as its goals are clear and measurable. The Texas goals were “ending stereotypes, promoting cross-racial understanding, preparing students for an increasingly diverse workforce and society, and cultivating leaders with legitimacy in the eyes of the citizenry.” These goals mirror the compelling interest standard that the Court has previously approved.
The Court went on to say that the university had met the narrow tailoring requirement by carefully considering race neutral means for achieving these goals and concluding that they were insufficient. These were not administrative decisions taken with little thought, but ones that were carefully researched and deliberated. The Court saw through the plaintiff’s argument when it attacked the idea of enrolling a critical mass of people of color as not being specific. The Court rightfully concluded that if Texas had sought to enroll a specific number of students of color, its program would operate more like an unlawful quota. Instead, they matched their numbers to their educational goals.
But the Court reminded the university that today’s decision did not leave the university free to simply replicate today’s assessments into the future. Schools that pursue similar methods have the obligation to periodically review their efforts and, where warranted, initiate changes to keep their goals carefully aligned with what the Court has declared permissible.
This case represents a rare, important victory for the civil rights community and leaves the door open for educators to continue employing carefully crafted affirmative admissions plans. But it’s also a limited victory in a long line of cases where the Court’s views on race seems locked into an early 20th century perspective, even as the conditions people of color face in the 21st century are rapidly evolving.
The Court’s decision in Fisher v. University of Texas at Austin will put this issue to rest, at least for the foreseeable future. But then again, issues involving race have a way of thwarting seemingly reliable predictions.
Victor Goode is law professor at the City University of New York School of Law. He is a former board member of Race Forward, the racial justice organization that publishes Colorlines.