Thoughts on today's Fisher II Supreme Court oral argument on affirmative action

|The Volokh Conspiracy |

This morning, the Supreme Court heard oral argument in Fisher v. University of Texas II, an important case addressing the constitutionality of racial preferences in public university admissions. Based on the argument, I see little reason to revise my prediction that the most likely outcome is that the justices will strike down the University of Texas affirmative action program, and forcefully reiterate the requirement that courts must strictly scrutinize such programs without giving any deference to university officials. But the victory of the anti-preference side may be a pyrhhic one, if it comes at the cost of giving a blank check to "race-neutral" admissions policies that aren't really race-neutral at all.

This is the second time the case has gone to the Supreme Court. In Fisher I, an unusually large 7-1 majority reiterated the principle that universities can sometimes use racial preferences in order to promote "diversity," but also broke new ground by emphasizing that courts should apply "strict scrutiny" to such programs without giving any deference at all to the judgment of university officials. When the case was remanded back to the US Court of Appeals for the Fifth Circuit, the lower court again upheld the University of Texas program, and failed to apply the kind of nondeferential scrutiny the Supreme Court required.

I. The Debate over "Diversity."

As expected, the conservative justices expressed great skepticism about the University of Texas program, while the three liberals expressed support for it (Justice Elena Kagan is recused from the case). This strongly suggests that that the university will lose the case, as expected.

Significantly, the University's lawyer still failed to provide a clear standard for measuring the "diversity" created by racial preferences, or for determining how much preferential admissions is needed to achieve that benefit. It is also notable that that university continues to insist that racial preferences for blacks and Hispanics are needed to ensure that there is a "critical mass" of students from these groups on campus, but fails to explain why Texas does not extend racial and ethnic preferences to a wide range of other groups whose representation at UT is much lower than these two, or why we should use broad racial and ethnic categories such as black, Hispanic, and Asian, as opposed to more fine-grained ones that may be more probative of genuine contributions to diversity.

Perhaps the one modest surprise is that Justice Anthony Kennedy—the key swing voter in the case—and Justice Stephen Breyer, suggested that it might be desirable to remand the case for further fact-finding by the trial court. At one point, Kennedy stated there may be additional facts that "we should know but we don't know" about the potential benefits of the Texas program and how the University measures them. But later in the argument, Kennedy indicated that the "all of the colloquy so far indicates to me that, if you had a remand, you would not have put in much different or much more evidence than we have in the record right now." It is indeed unlikely that a remand would discover important new evidence in a case that has already been extensively researched and litigated over a period of several years.

II. The Perils of Endorsing the Texas Ten Percent Plan.

One other key point that emerges from the argument is that the conservative justices seem to assume that the Texas Ten Percent Plan—which grants automatic admission to any high school graduate who was in the top ten percent of his or her class—is an acceptable "race neutral" way to promote diversity. Indeed, one reason why the Texas' explicit program of racial preferences might fail strict scrutiny is because the university already has a large number of black and Hispanic students, thanks to the Ten Percent Plan. The problem with this line of reasoning is that the Ten Percent Plan itself was adopted in large part for racial reasons. In my view, it is both unconstitutional, and a worse policy than traditional, explicit affirmative action. In the context of traditional racial discrimination against minorities, courts routinely strike down policies that seem neutral, but that were clearly adopted for the purpose of favoring whites at the expense of racial minorities. The Ten Percent Plan is a similar policy in reverse.

Just as it was not genuinely "race-neutral" when southern states used facially neutral literacy tests and poll taxes to try to prevent blacks from voting, so it is not race-neutral when a state legislature deliberately bases university admissions on criteria that correlate with race, and does so for the specific purpose of increasing the representation of some racial groups at the expense of others. Obviously, the motivations of the two programs are very different; supporters of the Ten Percent Plan certainly are not morally odious racists in anything like the same way as supporters of poll taxes and literacy tests were. But both types of policies were clearly enacted for racial purposes. As Justice Ruth Bader Ginsburg pointed out in her dissent in Fisher I, "only an ostrich could regard the supposedly neutral alternatives as race unconscious… Texas' percentage plan was adopted with racially segregated neighborhoods and schools front and center stage…It is race consciousness, not blindness to race, that drives such plans."

Unlike Justice Ginsburg, I don't think the right approach is to give broad deference to universities with respect to both types of race conscious admissions policies. Rather, I think both should be subject to the same rigorous judicial scrutiny outlined in Fisher I. Ultimately, I am skeptical that public universities should ever be allowed to engage in racial discrimination for purposes of promoting diversity, though I do think the state should, in rare cases, be allowed to use racial classifications in order to promote compensatory justice.

If the Supreme Court strikes down Texas' admissions policy on the basis that the Ten Percent Plan is a constitutionally permissible "race-neutral" strategy for promoting diversity, then this is likely to incentivize universities to adopt a variety of deceptive programs that base admissions on seemingly race-neutral criteria that were in fact selected because they closely correlate with race. Such deception is unlikely to be an improvement over conventional affirmative action, and may even make things worse. Hopefully, the Court will strike down Texas program in a way that avoids such an outcome. Since the constitutionality of the Ten Percent Plan was not challenged in Fisher, the justices could avoid seeming to endorse it by explicitly stating that they are not resolving the issue of its constitutionality either way, and do not mean to suggest that a facially neutral program motivated by racial considerations is automatically acceptable.

Finally, it is worth noting that the Solicitor General Donald Verrilli (representing the Obama administration) and several of the justices had an extensive exchange over the argument that racial preferences in admissions are needed to ensure representation of minorities in the officer corps of the armed forces. While I think this argument may have some merit, it cannot justify racial preferences in admissions outside the context of the military academies and students who are likely to join the military through ROTC or other similar programs.