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I. Introduction

 
Justice Kennedy’s majority opinion in Fisher v. University of Texas at Austin[ref]133 S. Ct. 2411 (2013).[/ref] on the constitutionality of the University of Texas at Austin’s (the University) affirmative action admissions program appears to have something for everyone. Six other justices who had staked out starkly contrasting positions on affirmative action in the past joined the opinion. The parties to the case each claimed they were pleased with the outcome, and both supporters and opponents of affirmative action hailed the decision a victory for their respective sides of the debate.
 
In most respects, the Fisher decision dodged the key questions about affirmative action in college admissions: Does the Equal Protection Clause of the U.S. Constitution totally ban consideration of race in college admissions? If not, what types of limited consideration of race are permissible? The Supreme Court refused to decide whether Grutter v. Bollinger,[ref]539 U.S. 306 (2003).[/ref] which narrowly upheld a very limited use of race in college admissions, is still “good law” after the Court’s change in makeup and subsequent decision in Parents Involved in Community Schools v. Seattle School District No. 1.[ref]551 U.S. 701 (2007). The decision in Parents Involved struck down efforts to maintain racial diversity in public elementary and high schools. Between Grutter in 2003 and Parents Involved in 2007, Justice Alito replaced Justice O’Connor, shifting a vote allowing consideration of race in Grutter (O’Connor) to one prohibiting consideration of race in Parents Involved (Alito). Justice Roberts’s majority opinion in Parents Involved did not directly question the Grutter holding, instead distinguishing it based on the special nature of higher education, which was not applicable to elementary and high schools.[/ref] Rather than creating a consensus on affirmative action, which might be inferred from the 7-1 vote, Justice Kennedy’s very narrow opinion left open for another day the resolution of the controversial issues.[ref]Justice Kennedy was joined by Chief Justice Roberts and Justices Scalia, Thomas, Breyer, Alito and Sotomayor. Justice Ginsburg dissented and Justice Kagan recused herself, presumably due to involvement in the lower court litigation as Solicitor General.[/ref] Given the 4-4 split among justices other than Justice Kennedy, it seems inevitable that there will be no definitive pronouncement on affirmative action until there are new appointments to the Court.
 
In the meantime, Justice Kennedy was able to use Fisher to advance his particular middle-of-the-road approach to become the governing doctrine in affirmative action cases. In Fisher, he acknowledged (as he did in Grutter) that colleges have a compelling interest in a diverse student body, but he significantly narrowed the scope of legitimate consideration of race to attain that goal (which had been the basis for his dissent in Grutter). Without explicitly overruling or disagreeing with the Court’s opinion in Grutter, he effectively turned his dissent in Grutter into a majority opinion in Fisher.
 
This Essay will explore what was, and what was not, resolved in the Fisher decision, and will look ahead to the next affirmative action case on the Court’s docket—Schuette v. Coalition to Defend Affirmative Action.[ref]Coal. to Defend Affirmative Action v. Regents of Univ. of Mich., 701 F.3d 466 (6th Cir. 2012), cert. granted sub nom. Schuette v. Coalition to Defend Affirmative Action, 133 S. Ct. 1633 (2013).[/ref] In Schuette, the Court will review the constitutionality of an amendment to the Michigan Constitution that prohibits any consideration of race in public education. That amendment achieves, for the State of Michigan, a total ban on affirmative action.
 
If the Supreme Court upholds the constitutionality of the Michigan amendment, it would achieve what opponents of affirmative action might consider a “second best” option. That is, the four “conservative” justices were unable in Fisher, and in earlier Supreme Court decisions, to have the Court create a national ban on affirmative action (as part of U.S. constitutional law). Nevertheless, if the Court upholds the Michigan amendment, it would allow for state-by-state bans on affirmative action that would not be subject to Supreme Court review.
 

II. The Context of Fisher v. University of Texas at Austin

 
Abigail Fisher, a white female, brought suit against the University after she was denied admission to its undergraduate program. She asserted that the University’s admission criteria, which included consideration of race along with other factors, violated the Fourteenth Amendment’s Equal Protection Clause.[ref] There are three levels to the University’s admissions policy. First, under Texas’s “Top Ten Percent Law,” students who graduate in the top ten percent of their class from a Texas high school are assured admission to a public college, including the University. See Tex. Educ. Code Ann. §51.803 (West 2013). Second, each applicant is given an “Academic Index” (AI), which predicts freshman GPA by combining high-school class rank with standardized test scores. Third, each applicant is given a “Personal Achievement Index” (PAI) comprised of the applicant’s average essay score and “personal achievement score,” which considers leadership, extracurricular activities, honors and awards, work experience, community service, and “special circumstances.” Special circumstances include the applicant’s socioeconomic background, their high school’s socioeconomic status, race, and any special family responsibilities. For applicants not admitted under the Top Ten Percent Law, a combination of the AI and PAI scores determines priority for admission. Lower courts characterized the University’s consideration of race as “a factor of a factor of a factor of a factor.” See Fisher v. Univ. of Tex. at Austin, 645 F. Supp. 2d 587, 608 (W.D. Tex. 2009) aff’d, 631 F.3d 213 (5th Cir. 2011), vacated and remanded, 133 S. Ct. 2411 (U.S. 2013).[/ref] The district court and the Fifth Circuit Court of Appeals upheld the University’s limited use of race to achieve a diverse student body, based on their readings of the Supreme Court’s decision in Grutter v. Bollinger.
 
There were several reasons why Fisher’s appeal was not a particularly good vehicle for a broad-brush review of the Court’s affirmative action doctrine. First, the governing precedents of Grutter and Gratz v. Bollinger[ref]539 U.S. 244 (2003).[/ref] were relatively recent (2003). Second, only eight justices participated because of Justice Kagan’s recusal. Third, there were strong arguments that Fisher’s lawsuit was not justiciable on standing and mootness grounds.[ref]The mootness issue arose because during the pendency of the litigation, Abigail Fisher attended and graduated from Louisiana State University. Because the suit was not brought as a class action, it was questionable whether there was an active “case or controversy.” The standing issue is related to Fisher’s assertion that she would have been admitted but for the affirmative consideration of race. Substantial evidence in the record supported the University’s contention that she would not have been admitted even if race had not been considered. These justiciability issues were raised in the University’s Opposition to the Petition for Certiorari and during oral argument before the Supreme Court.[/ref] Finally, the Texas admissions plan included a relatively unusual mechanism, making it much less likely that a ruling would be applicable to most college and graduate school admissions.[ref]See supra note 6 (providing overview of Texas’s Top Ten Percent Law). This objection was also raised in the University’s Opposition to the Petition for Certiorari.[/ref]
 
The Supreme Court’s decision to grant review in Fisher despite these factors, led to speculation that the Court might be ready to issue a definitive pronouncement that race can never be considered in order to achieve a diverse student body. There certainly was some basis for that speculation. In prior decisions, four of the justices had endorsed the principle that the Constitution requires the government to be “colorblind”—that is, it can never take race into account in its treatment of individuals. In Grutter and Gratz, Justices Scalia and Thomas wrote and joined in opinions that rejected the University of Michigan’s purported compelling interest in a diverse student body, and concluded that the school could never consider race in its admissions process. In Parents Involved, Chief Justice Roberts wrote the majority opinion, joined by Justices Scalia, Thomas, and Alito, that rejected student-body diversity as a compelling interest in pupil assignments to elementary and secondary schools. The opinion espoused a colorblind approach, which is summarized in the Chief Justice’s concluding sentence: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”[ref] Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007).[/ref] As shorthand in this Essay, these justices will be referred to as the “conservatives” with respect to affirmative action issues.[ref]The conservative and liberal terminology is often problematic and simplistic in describing Supreme Court justices, but at least in the area of affirmative action, the labels are not misleading because of the patterns in the justices’ voting.[/ref]
 
In contrast, there are four justices who had voted against, or were likely to oppose, such a categorical ban on considering race in university admissions. Justices Ginsberg and Breyer supported the limited use of race in both Grutter and Parents Involved. Justices Sotomayor and Kagan were new to the Court since those decisions, but there were clear indicators of their sentiments. For instance, Justice Sotomayor has made public comments indicating her disagreement with Robert’s approach in Parents Involved;[ref]See Adam Liptak, Sotomayor Reflects on First Years of Court, N.Y. Times, Jan. 31, 2011, http://www.nytimes.com/2011/02/01/us/politics/01sotomayor.html?_r=2&ref=us&pagewanted=print.

On the other hand, [Justice Sotomayor] said she disagreed with Chief Justice Roberts’s approach to cases concerning racial equality. In a 2007 opinion in a decision limiting the use of race to achieve public school integration, Chief Justice Roberts wrote that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
That approach, Justice Sotomayor said, was “too simple.”
“I don’t borrow Chief Justice Roberts’s description of what colorblindness is,” she said. “Our society is too complex to use that kind of analysis.”

Id. [/ref] and Justice Kagan was involved in developing the federal government’s position supporting affirmative action in the lower court litigation of Fisher and in Schuette, which led to her recusal in both cases at the Supreme Court. As short-hand in this essay, these justices will be referred to as the “liberals” with respect to affirmative action issues.
Everyone recognized that Justice Kennedy was going to be the key vote in Fisher and in clarifying the future of affirmative action because of the independent approach he had articulated in the Grutter, Gratz, and Parents Involved cases.[ref] This was evident in the blatant pandering to Justice Kennedy in the parties’ briefs and during the oral argument. For example, the opening page of the University’s brief took an unusual tack in citing three different times to Justice Kennedy’s dissenting opinion in Grutter, in which he voted against the University of Michigan Law School’s admissions plan that the University’s admissions policy was explicitly modeled after.[/ref] Justice Kennedy had consistently voted against the use of race as it was employed in those cases, agreeing in the outcome with Justices Scalia and Thomas in Grutter and Gratz, and with the four conservatives in Parents Involved. Nevertheless, in separate concurring and dissenting opinions he staked out an idiosyncratic position—one that left open the possibility of affirmative action under very narrow circumstances.
 
On the issue of whether diversity was a compelling interest, Justice Kennedy concluded that it could be, both in university admissions and in public school pupil assignment. In this respect, he disagreed with the conservatives. He also disagreed with the colorblind principle that race can never be considered in government action. Instead, he endorsed a very narrow standard for when race is permissible as a means to achieve diversity, and disagreed in each case with the conclusion of the liberals that the affirmative action programs had done so appropriately.
 

III. Ramifications of the Fisher Decision

 
In Fisher, the Supreme Court reversed the decision of the Fifth Circuit Court of Appeals that had upheld the University’s admissions process. Justice Kennedy’s majority opinion, on behalf of seven of the justices, concluded that the lower court was too deferential to the University and not did employ a rigorous form of strict scrutiny in reviewing its justification for considering the race of applicants. The Court vacated the Fifth Circuit’s judgment and remanded the case “so that the admissions process can be considered and judged under a correct analysis.”[ref]Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2421 (2013).[/ref] While they joined Justice Kennedy’s opinion, Justices Scalia and Thomas wrote separate concurring opinions in which they reiterated the view that they had expressed in their dissenting opinions in Grutter—that the Equal Protection Clause categorically prohibits a state’s use of race in university admissions. Justice Ginsburg was the sole dissenter. She argued that the University had carefully tailored its admission process after the model approved in Grutter. She concluded that Grutter controlled and the Texas plan should be upheld on that basis, without the need for remand to the Court of Appeals.
 

A. Is Grutter Still Good Law?

 
One of the intriguing aspects of Justice Kennedy’s majority opinion is how (and why) he maintained “neutrality” about the status of Grutter and its method of analysis. For example, at the outset of the opinion, Justice Kennedy referenced Regents of the University of California v. Bakke,[ref]438 U.S. 265 (1978).[/ref] Grutter, and Gratz as precedents addressing affirmative action in higher education. While he drew from them to develop his method of analysis, he carefully avoided endorsing or reaffirming them stating, “[w]e take those cases as given for purposes of deciding this case.”[ref]Fisher, 133 S. Ct. at 2417. Justice Kennedy has used a similar tactic before in order to cobble together a majority. For instance, in Gonzales v. Carhart he wrote an opinion on behalf of five justices to uphold federal restrictions on partial-birth abortions that began by stating, “[w]e assume the following principles for the purposes of this opinion.” See 550 U.S. 124, 146 (2007). He then summarized the principles from Roe and Casey, but was careful not to endorse them (which would have lost the votes of Justices Thomas and Scalia).[/ref]
 
Later, in analyzing the first step of strict scrutiny—whether the University had a compelling interest in a diverse student body—he maintained that “[a]ccording to Grutter,” the Court should defer to the University’s educational judgment.[ref]See Fisher, 133 S. Ct. at 2419.[/ref] He acknowledged that “[t]here is disagreement about whether Grutter was consistent with the principles of equal protection in approving this compelling interest in diversity,” but he avoided that question by stating, “the parties here do not ask the Court to revisit that aspect of Grutter’s holding.”[ref]Id.[/ref] Later, his opinion again backs off from endorsing or rejecting Grutter’s determination about the unavailability of “workable race-neutral alternatives” for a university to achieve diversity, and notes that “the parties d[id] not challenge, and the Court therefore [would] not consider, the correctness of that determination.”[ref]Id. at 2421.[/ref]
 
These assertions that the parties had not asked the Court to revisit Grutter are misleading. Petitioner presented and argued the case as a potential vehicle for reconsidering Grutter. In both the Petition for Certiorari and the Petitioner’s Brief on the Merits, she presented her arguments in the alternative: The Texas admissions plan violates Grutter; but if Grutter is read to permit the Texas plan, then the Court should “reconsider” and “overrule” Grutter.[ref]See Brief for Petitioner at 53, Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411 (2013) (No. 11-345), 2012 WL 1882759; Petition for Writ of Certiorari at 35, Fisher, 133 S. Ct. 2411 (No. 11-345), 2011 WL 4352286.[/ref] The Respondent’s Brief opposed that invitation to revisit Grutter, asserting that “[t]here is no basis to reconsider or overrule [Grutter].”[ref]Brief for Respondents at 50, Fisher, 133 S. Ct. 2411 (No. 11-345), 2012 WL 3245488. Justice Kennedy did not include any reference for his statement that the parties were not challenging the correctness of Grutter. In his concurrence, Justice Scalia reached a similar conclusion, citing to a statement of counsel at oral argument that is ambiguous. See Fisher, 133 S. Ct. at 2422 (Scalia, J., concurring) (citing Transcript of Oral Argument at 8-9, Fisher, 133 S. Ct. 2411 (No. 11-345)). Counsel’s primary argument was that Petitioner should win under Grutter if Grutter were read and applied properly; thus, counsel was attempting to avoid the question of whether to overrule Grutter, which was his fallback argument.[/ref]
 
Justice Kennedy clearly could have used Fisher as an opportunity to reconsider Grutter, a 5-4 decision in which he was a dissenter. Following the replacement of Justice O’Connor (the author of Grutter) with Justice Alito (who endorsed a colorblind approach in Parents Involved), Justice Kennedy presumably had five votes to write an opinion reversing Grutter if he wanted to. Why did Justice Kennedy go out of his way to maintain this neutrality towards Grutter? The most likely explanation is Justice Kennedy’s moderation in directly overruling precedent, especially when he can achieve his goals through more subtle manipulation of doctrine. The most notable example of this is Planned Parenthood of Southeastern Pennsylvania v. Casey, in which he and Justices O’Connor and Souter authored a joint opinion that declined to overrule Roe v. Wade.[ref]See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844-70 (1992); Roe v. Wade, 410 U.S. 113 (1973).[/ref] Nevertheless, in the process they significantly modified the method of analysis in abortion cases (by adoption of the “undue burden” test) in a way that made it easier for states to restrict access to abortions.
 
In Fisher, Kennedy was able to do much the same. Without explicitly referring to his dissenting opinion in Grutter, he imported the language and standards of that dissent into the Fisher majority opinion and won the endorsement of six other justices. A common theme in both his dissent in Grutter and his majority opinion in Fisher is extensive reliance on Justice Powell’s opinion in Bakke. He began his summary of the governing doctrine in Fisher with an extended discussion of Bakke, just as he did in his dissent in Grutter. In Fisher, he characterized the Grutter decision as having “endorsed the precepts stated by Justice Powell.”[ref]Fisher, 133 S. Ct. at 2413.[/ref] In his statement of the holding in Fisher, he refers to Bakke as well as Grutter.[ref]“The Court concludes that the Court of Appeals did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and Regents of Univ. of Cal. v. Bakke . . . (opinion of Powell, J.)” Id. at 2415.[/ref] And, the Fisher opinion concludes with a quote by Justice Powell in Bakke.
 
The reliance on Bakke is most noticeable in the portion of the Fisher opinion in which he stresses the rigorous nature of the “means” test—that is, whether it is necessary for the University to consider race in order to achieve a diverse student body. That was the analytical step in Grutter that was the basis for Justice Kennedy’s dissent. He faulted the majority in Grutter for showing deference to the University of Michigan Law School’s claim of a need to consider race—the very same failing that he found in reversing the Fifth Circuit’s decision in Fisher.
 
The language that Kennedy used in Fisher (reversing the Fifth Circuit) and in his dissent in Grutter (critical of the majority opinion), are strikingly similar. In both instances he concludes that the standard of strict scrutiny, required by Justice Powell in Bakke and in subsequent decisions, was not rigorously applied, and that deference was inappropriately given to the universities.[ref]For example, compare Justice Kennedy’s dissent in Grutter:

Having approved the use of race as a factor in the admissions process, the majority proceeds to nullify the essential safeguard Justice Powell insisted upon as the precondition of the approval. The safeguard was rigorous judicial review, with strict scrutiny as the controlling standard. . . . The Court confuses deference to a university’s definition of its educational objective with deference to the implementation of this goal. In the context of university admissions the objective of racial diversity can be accepted based on empirical data known to us, but deference is not to be given with respect to the methods by which it is pursued.

Grutter v. Bollinger, 539 U.S. 306, 388 (2003) (citations omitted), with his majority opinion in Fisher:

The Court of Appeals thus concluded that “the narrow-tailoring inquiry—like the compelling-interest inquiry—is undertaken with a degree of deference to the Universit[y] [of Michigan Law School].”
. . . .
. . . Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice.
. . . .
. . . The District Court and Court of Appeals confined the strict scrutiny inquiry in too narrow a way by deferring to the University’s good faith in its use of racial classifications and affirming the grant of summary judgment on that basis.

Fisher, 133 S. Ct. at 2420-21 (citations omitted).[/ref]
 
Justice Kennedy’s heavy reliance on Justice Powell’s opinion in Bakke is somewhat surprising because Justice Powell’s opinion was not joined by any other justices, and it predated the majority opinion in Grutter, which was joined by five justices. But, given that his goal was to “tighten up” the level of scrutiny in Grutter (consistent with his dissent), it was helpful to draw on Justice Powell’s strong statements about strict scrutiny. Moreover, Justice Kennedy seems to view himself in the moderate, centrist tradition of Justice Powell, particularly on matters of race. In Bakke, Justice Powell was the single vote in a 4-4-1 split, with the remaining justices divided into liberal and conservative blocs, much the same as Justice Kennedy straddles two blocs on the current Court. Yet, to the credit of Justice Kennedy’s artfully crafted opinion in Fisher, with its caveats and compromises, he was able to garner the support of six other justices.
 
Returning to the question posed earlier—is Grutter still good law?—Justice Kennedy’s opinion studiously avoids answering that question directly. He neither reaffirms nor challenges Grutter as precedent. But his opinion effectively raises the level of scrutiny to be applied to affirmative action admissions policies, so that what is now good law in Grutter is his dissenting opinion, rather than Justice O’Connor’s majority opinion.
 

B. Why Remand to the Court of Appeals?

 
Another intriguing aspect of Justice Kennedy’s opinion in Fisher is the decision to remand the case to the Court of Appeals. After concluding that the Fifth Circuit had not employed a sufficiently rigorous form of strict scrutiny, he declined to apply the proper standard to the Texas admissions scheme. Instead, he chose to send the case back to the lower court “so that the admissions process can be considered and judged under a correct analysis.”[ref]Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2421 (2013).[/ref]
 
Given his critique of the Michigan admissions plan in his Grutter dissent, and his articulation in Fisher of the high standard that the state must meet in the means test of strict scrutiny, it seems clear that the Texas plan would not be acceptable to Justice Kennedy. The vast majority of students of color enrolled in the University are admitted pursuant to the state’s “Top Ten Percent Law.”[ref]According to Judge Garza’s dissenting opinion in the Fifth Circuit, the University “was able to obtain approximately 96% of the African-American and Hispanic students enrolled in the 2008 entering in-state freshman class using race-neutral means.” Fisher v. Univ. of Tex. at Austin, 631 F.3d 213, 263 (5th Cir. 2011) (Garza, J., dissenting), vacated and remanded, 133 S. Ct. 2411 (2013) (referring to Top Ten Percent Law).[/ref] Under that law, the top ten percent of graduates from public high schools in Texas are assured admission to a state college, including the University. Because of the demographics of Texas high schools, there is substantial racial and ethnic diversity in the students admitted under the Top Ten Percent Law.[ref]It is sadly ironic that the Top Ten Percent Law, which was enacted to promote racial diversity at the University, is effective at doing so because of de facto segregation (i.e., lack of racial diversity) in many high schools in Texas.[/ref] A very small percentage of minority students are admitted pursuant to the “Personal Achievement Index” (PAI), which is the only factor that considers race (as one of many factors).[ref]See supra note 6 (explaining applicant rating system).[/ref] Because the Top Ten Percent Law is an apparently race-neutral means of achieving substantial diversity, it is hard to see how the University can satisfy its burden as set out by Justice Kennedy in Fisher:

Narrow tailoring also requires that the reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity. This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications. . . . The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.[ref]Fisher, 133 S. Ct. at 2420 (citations omitted).[/ref]

The University’s argument on this point was that the level of diversity produced by the Top Ten Percent Law was not sufficient to create a “critical mass” of students of color within the student body; therefore, the additional use of race as one factor within the PAI was necessary to achieve that. However, Justice Kennedy strongly rejected the concept of a critical mass as a legitimate goal in his Grutter dissent.[ref]“The dissenting opinion by The Chief Justice, which I join in full, demonstrates beyond question why the concept of critical mass is a delusion used by the Law School to mask its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas.” Grutter v. Bollinger, 539 U.S. 306, 389 (2003) (Kennedy, J., dissenting).[/ref] It is hard to see why he would not have ruled against the University on this point—which he did not reach, of course, because of the decision to remand the issue to the Court of Appeals. It is even clearer that the four conservative justices would have found the use of race by the University to be unconstitutional. They share Justice Kennedy’s rejection of the critical mass argument and definitively reject any consideration of race in earlier affirmative action decisions.[ref]At the oral argument in Fisher, Justices Roberts, Scalia and Alito asked “questions” that were thinly veiled challenges to the critical mass justification.[/ref]
 
If Justice Kennedy had five votes to declare the Texas scheme unconstitutional, why did he pull back from doing so? Is there something that he accomplished by leaving that issue open on remand? Something that was more important to him than a definitive ruling on the particular Texas statute? The primary “gain” in deciding to remand is that Justice Kennedy had a chance to bring Justices Breyer and Sotomayor into the majority. If he had invalidated the Texas law, it would have been a stronger anti-affirmative action decision, but it is likely that only the four conservatives would have joined it. Instead, he wrote an opinion that achieved what he wanted in terms of moving doctrine towards his Grutter dissent, and it garnered legitimacy (and possibly more durability) as a result of the support of a coalition of conservatives and liberals.
 
There was a long delay between the oral argument in October 2012, and the issuance of the decision in June 2013. Clearly, the justices did not come to this decision quickly or easily. Presumably it is the result of quite a bit of back-and-forth, circulating draft opinions, and responding memoranda. Justice Thomas’s extensive concurring opinion, for example, seems out of proportion to the modest majority opinion that ended up being issued. Viewed this way, the final Fisher decision seems like a “truce” in the debate within the Supreme Court about affirmative action. The conservatives accepted the fact that they do not have the votes to establish a per se ban on considering race in university admissions, and were willing to join Justice Kennedy’s opinion as long as Grutter was not reaffirmed, thus leaving its continued validity an open question.
 
Two of the liberals (Justices Breyer and Sotomayor) were willing to join Kennedy’s opinion because it does not overtly disturb Grutter’s approval of some forms of affirmative action, and it leaves open the question of the validity of the Texas admissions criteria. They presumably saw a benefit from a decision that avoided potential damage to affirmative action. Justice Ginsburg, of course, chose not to join the compromise. She was not satisfied with the neutrality towards Grutter in Justice Kennedy’s opinion, and she disagreed with the remand, wanting a clear affirmation of the Fifth Circuit’s decision upholding the Texas admissions scheme.
 
How long will this truce hold? Could it endure as long as the twenty-five year “sunset provision” Justice O’Connor suggested in Grutter?[ref]In Grutter, Justice O’Connor’s majority opinion emphasized that “race-conscious admissions policies must be limited in time,” and announced the majority’s “expect[ation] that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Grutter, 539 U.S. at 342-43.[/ref] Given the entrenched positions of the four conservatives and the four liberals, along with the fact that Justice Kennedy has now established his point of view as governing doctrine, nothing is likely to change until there are new appointments to the Court that change the balance of power.
 

IV. But Wait—Isn’t the Next Affirmative Action Case Already Before the Court?

 
While the Fisher case was still pending, the Supreme Court granted review of Schuette v. Coalition to Defend Affirmative Action. As the name of the case suggests, it involves affirmative action and an equal protection claim—might it provide a resolution of the issues that were dodged by Justice Kennedy in Fisher? In a word, no. Fisher and Schuette raise distinct constitutional issues and rely on different lines of precedent. A ruling in Schuette will not affect, doctrinally, the “Fisher truce.” However, Schuette does involve an important interpretation of the Equal Protection Clause that has future affirmative action ramifications.
 
The Schuette litigation arises out of efforts by opponents of affirmative action to use state referenda processes to ban affirmative action as a matter of state constitutional law. The initiative in Schuette—known as “Proposal 2”—was placed on the ballot in Michigan in 2006, and was designed to circumvent the Supreme Court’s decision in Grutter upholding the University of Michigan Law School’s consideration of race in admissions. Section 1 of Proposal 2 provides:

The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.[ref]Mich. Const. art. I, § 26.[/ref]

Section 2 of Proposal 2, which is not the focus of the Schuette litigation, is a broader prohibition on the consideration of race by the state (not just by colleges and schools). Proposition 2 was styled after California’s Proposal 209, which was ratified by California voters in 1996. The California Supreme Court and the Ninth Circuit Court of Appeals subsequently upheld Proposal 209 after it was challenged on equal protection grounds.
 
Supporters of affirmative action, asserting that the state constitutional amendment violates the Equal Protection Clause of the Fourteenth Amendment, brought the challenge to Michigan’s Proposal 2. Thus, the equal protection issue in Schuette is the converse of Fisher: In Fisher, the question was whether a state university can choose to take race into account in university admissions, whereas in Schuette, the question is whether a state university can be barred from taking race into account. While both cases involve interpretation of the Equal Protection Clause, they are based on two distinct doctrines within the realm of equal protection.
 
In Schuette, the Supreme Court is reviewing an 8-7 en banc decision by the Sixth Circuit Court of Appeals that Proposal 2 violates the Equal Protection Clause. That ruling is not based on what the court termed a “conventional” claim of an equal protection violation—that a state law discriminates on the basis of race. Indeed, the essence of Proposal 2’s prohibition, banning any consideration of race, seems totally consistent with the antidiscrimination principle of the Fourteenth Amendment. Instead, the ruling is based on a “political-process” or “political restructuring” doctrine,[ref]The terminology used to describe the doctrine does not come from the Supreme Court decisions themselves. The lower courts and the briefs of the parties have used several terms interchangeably for the doctrine. “Political Process” is the term used in the Sixth Circuit majority opinion in Schuette. See Coal. to Defend Affirmative Action v. Regents of Univ. of Mich., 701 F.3d 466, 473 (6th Cir. 2012), cert. granted sub nom. Schuette v. Coalition to Defend Affirmative Action, 133 S. Ct. 1633 (2013). “Political Structure” is used by the Ninth Circuit in Wilson and by the California Supreme Court in Coral Construction. See Coal. for Econ. Equity v. Wilson, 122 F.3d 692, 702 (9th Cir. 1997); Coral Constr., Inc. v. City & Cnty. of San Francisco, 235 P.3d 947, 953 (Cal. 2010). “Political Restructuring” theory or doctrine is used by Petitioner and Respondents in the briefs submitted to the Supreme Court, and by the dissenters in the Court of Appeals decision in Schuette. This Essay will refer to it as the “political restructuring” doctrine because that is the terminology being used by the parties before the Supreme Court. See Brief for Petitioner, supra note 20, at 17 (referring to “political-restructuring doctrine”).[/ref] which the Sixth Circuit described as the “Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.”[ref]Regents of Univ. of Michigan, 701 F.3d at 470.[/ref] The Sixth Circuit concluded that by establishing a constitutional barrier to universities considering race in admissions, Proposal 2 burdens a minority group’s ability to achieve its goals in the usual political process.
 
The underlying doctrine derives from the Supreme Court’s decision in Hunter v. Erickson.[ref]393 U.S. 385 (1969).[/ref] In Hunter, the Akron City Council had enacted a fair housing ordinance prohibiting discrimination based on race or religion. In response, voters mounted a successful referendum campaign to amend the city charter to repeal that ordinance and to prevent the enactment of any similar law, unless approved in a city-wide referendum. The Court struck down the charter amendment because it created a higher and more difficult political burden—approval by a city-wide referendum—for those who wanted protection from racial discrimination than it did for any other type of housing ordinance, which only needed the support of the City Council. Even though on its face it did not draw distinctions based on race, it was, in effect, “an explicitly racial classification treating racial housing matters differently from other racial and housing matters.”[ref]Id. at 389.[/ref] The amendment was unconstitutional because “[a] State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person’s vote or give any group smaller representation than another of comparable size.” [ref]Id. at 393.[/ref]
 
In Washington v. Seattle School District No. 1,[ref]458 U.S. 457 (1982).[/ref] the Supreme Court reaffirmed and applied Hunter to invalidate a statewide initiative that prohibited school boards from using busing to achieve racial integration. The Seattle School Board had approved a busing plan to address de facto segregation in the city’s schools. The statewide initiative had the effect of not only invalidating that busing plan, but also of imposing a more onerous political burden on those seeking to promote racial integration than on those seeking to use busing to achieve other (nonracial) policy goals.[ref]During the same term as Seattle School District, the Supreme Court decided Crawford v. Bd. of Educ., 458 U.S. 527 (1982), which upheld a voter ratified amendment to the California constitution that was somewhat analogous to the initiative adopted in Seattle School District. In response to (and in order to overturn) a state-court ordered busing plan, the California amendment restricted state-court ordered busing for desegregation purposes to those instances in which a federal court would order busing to remedy a Fourteenth Amendment violation. Justice Powell wrote the majority opinion in Crawford, and distinguished it from Seattle School District, reasoning that the California amendment only affected actions by the state courts, and did not deprive local school districts from developing their own busing plans. It thus did not affect the kind of political restructuring that was the fatal flaw in Seattle School District. The petitioner in Schuette is not relying on Crawford.[/ref]
 
Based on Hunter and Seattle School District, the Sixth Circuit majority in Schuette held that a political enactment deprives minority groups of equal protection when the enactment: “(1) has a racial focus, targeting a policy or program that ‘inures primarily to the benefit of the minority’; and (2) reallocates political power or reorders the decisionmaking process in a way that places special burdens on a minority group’s ability to achieve its goals through that process.”[ref]Coal. to Defend Affirmative Action v. Regents of Univ. of Mich., 701 F.3d 466, 477 (6th Cir. 2012), cert. granted sub nom. Schuette v. Coalition to Defend Affirmative Action, 133 S. Ct. 1633 (2013).[/ref] The Court concluded that Proposition 2 met both of these criteria. It noted that a student seeking to benefit from a nonracial preference for admission to a state university, such as her family’s alumni connections, can achieve that goal by lobbying the admissions committee, the university leadership, or the school’s governing board; and only as a last resort would she need to seek to amend the state constitution to provide for such a preference:

The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution—a lengthy, expensive, and arduous process—to repeal the consequences of Proposal 2. The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.[ref]Id. at 470.[/ref]

The dissenters in the Sixth Circuit disputed the application of Hunter and Seattle School District, and accepted the conclusions of the state and federal courts that previously upheld California’s Proposition 209, upon which Michigan’s amendment was based. They criticized the idea of a “constitutional protection for racial and gender preference—a concept at odds with the basic meaning of the Equal Protection Clause, as understood and explained through decades of jurisprudence.”[ref]Id. at 494 (Gibbons, J., dissenting).[/ref] They distinguished Hunter as involving the political process implications of repealing a law that required equal treatment based on race; and they contended that it should not be extended to Schuette where the law being repealed requires preferential treatment based on race. Finally, they concluded that Proposition 2 did not reallocate political power in a way that violates equal protection. In their view, voters did not “restructure” the political process, they “employed” it.
 

V. How Will the Supreme Court Rule in Schuette?

 
Predicting what the Supreme Court will decide in Schuette is hampered by the fact that none of the current justices have ruled on a political-restructuring equal protection claim. Indeed, the Court has not based a decision on Hunter’s rationale since 1982. In 1969, the Court that decided Hunter by an 8-1 margin was considerably more liberal on racial issues than later Courts. By 1982, when Seattle School District was decided, the Court had begun to shift; that case was decided by a 5-4 vote with Justices Powell and O’Connor, two moderates, in dissent along with Justices Rehnquist and Burger. On the current Court, the votes of the four conservatives seem predictable. Their position—expressed in the Grutter dissents of Justices Scalia and Thomas, and in the majority opinion in Parents Involved on behalf of all four—is that equal protection prohibits any consideration of race. There is no reason to think that they would find that equal protection is violated by a state constitutional amendment that says exactly that.
 
As to the liberals, Justice Kagan is again recused because of her earlier involvement as Solicitor General. It seems very likely that Justices Ginsburg and Breyer would support the political restructuring argument in Schuette. In addition to their support of race-conscious policies in Grutter, Parents Involved, and Fisher, they joined the Court’s opinion in Romer v. Evans,[ref]517 U.S. 620 (1996).[/ref] which employed reasoning similar to the political restructuring doctrine. There is less evidence to base a prediction for Justice Sotomayor’s vote because she was not on the Court for Romer, Grutter, or Parents Involved, but there are reasons to suggest she will be supportive of the restructuring argument as well. She has acknowledged the importance of affirmative action in her own career, which allowed her to attend Princeton University as an undergraduate; she has spoken against the colorblind approach of the four conservatives, which would bar affirmative action; and her vote in Fisher indicates her support of diversity in higher education as a compelling interest. In general, her voting has been most closely aligned with Justices Kagan, Ginsburg, Breyer, and Kennedy, and with the exception of Kagan (who was not on the Court at the time), they were all part of the Romer majority.[ref]See Kedar Bhatia, Final October Term 2012 Stat Pack, ScotusBlog (June 26, 2013, 6:36 PM), http://www.scotusblog.com/2013/06/final-october-term-2012-stat-pack/ (providing agreement rates from 2012 term); Kedar Bhatia, Final October Term 2011 Stat Pack and Summary Memo, ScotusBlog (June 30, 2012, 7:59 PM), http://www.scotusblog.com/2012/06/final-october-term-2011-stat-pack-and-summary-memo/ (providing agreement rates from 2011 Term).[/ref] Justice Souter, whom she replaced and who also joined the Romer majority, had very high agreement rates with the justices that Justice Sotomayor most often agrees with.[ref]See Agreement Stats for OT08, ScotusBlog (June 29, 2009), http://www.scotusblog.com/wp-content/uploads/2009/06/justice-agreement.pdf (providing agreement rates from Justice Souter’s last term during which his highest agreement rates were with Justices Stevens, Ginsburg, Breyer, and Kennedy).[/ref] Thus, on balance, the best prediction for Justice Sotomayor in Schuette is that she will vote to strike down Proposition 2 on the basis of the political restructuring argument.
 
This leads us again to Justice Kennedy. There is good reason to think that he will again be the key vote. If he sides with the conservatives, it would be a 5-3 decision upholding Proposition 2. If he sides with the three liberals participating in the appeal, the resulting 4-4 split would mean that the Court of Appeals decision striking down the amendment will stand.
 
What insights do we have about his point of view? There are conflicting signals. One potentially important clue is an opinion by Justice Kennedy—Romer v. Evans—which has been largely overlooked in the Schuette litigation thus far.[ref]Romer was not cited in the Sixth Circuit majority opinion and there are only incidental references to it in the briefs at the Supreme Court level.[/ref] Justice Kennedy’s majority opinion in Romer, which was joined by Justices Ginsburg and Breyer (as well as departed Justices O’Connor, Stevens, and Souter), could be an indicator of his support for the political restructuring doctrine. In Romer, the sequence of events was analogous to what occurred in Hunter, Seattle School District, and Schuette. Local antidiscrimination laws protecting homosexuals were invalidated by a voter referendum that amended the Colorado Constitution. Justice Kennedy’s opinion held that the amendment violated the Equal Protection Clause and, in explaining his reasoning, the language sounded quite similar to that of the political restructuring doctrine:

Amendment 2, in explicit terms, does more than repeal or rescind these provisions. It prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians.
. . . .
. . . The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.
. . . .
. . . [W]e cannot accept the view that Amendment 2’s prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the state constitution or perhaps, on the State’s view, by trying to pass helpful laws of general applicability.
. . . .
. . . A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.[ref]Romer, 517 U.S. at 624, 627, 631, 633.[/ref]

This language in Romer would seem to indicate Justice Kennedy’s support for the political restructuring doctrine, and for applying it beyond the racial context to sexual orientation. However, one aspect of Justice Kennedy’s opinion in Romer raises a question about this thesis. The Colorado Supreme Court decision that was reviewed in Romer had relied on the restructuring theory, and explicitly on the Hunter and Seattle School District decisions. Yet, Kennedy stated that he was not basing his decision in Romer on that rationale:

[T]he State Supreme Court held that Amendment 2 was subject to strict scrutiny under the Fourteenth Amendment because it infringed the fundamental right of gays and lesbians to participate in the political process. To reach this conclusion, the state court relied on our voting rights cases, and on our precedents involving discriminatory restructuring of governmental decisionmaking, see, e.g., Hunter v. Erickson; . . . Washington v. Seattle School Dist. No. 1 . . . . We granted certiorari and now affirm the judgment, but on a rationale different from that adopted by the State Supreme Court.[ref]Id. at 625-26 (emphasis added) (citations omitted).[/ref]

Despite his reliance on reasoning similar to Hunter and Seattle School District, he explicitly distanced his decision from those cases. Why did he do that? It could be a reflection of his disagreement with the political restructuring doctrine, but then why would he write an opinion so closely tracking that rationale? Another possibility is that it was necessary for him to disclaim that basis for the decision in order to gain support from other justices. For example, Justice O’Connor joined his Romer opinion, but she had been a dissenter in Seattle School District. In order to bring her into the majority in Romer, he may have had to include the language disclaiming reliance on Hunter and Seattle School District.
 
It is also possible that Justice Kennedy’s opinion in Romer is not a clear indicator of his support, or lack thereof, for the political restructuring doctrine, but is instead a reflection of his strong objection to classifications that disadvantage homosexuals. The latter was the basis for his subsequent majority opinions in Lawrence v. Texas and United States v. Windsor, when there were no political restructuring arguments involved.
Another reason to question the likelihood of Justice Kennedy using the political restructuring doctrine to strike down Proposition 2 in Schuette is the fact that Justice Powell wrote the dissenting opinion (on behalf of four justices) in Seattle School District. In his critique of the majority opinion, Powell anticipated the very question raised in Schuette:

The Court’s decision intrudes deeply into normal state decisionmaking. Under its holding the people of the State of Washington apparently are forever barred from developing a different policy on mandatory busing where a school district previously has adopted one of its own. This principle would not seem limited to the question of mandatory busing. Thus, if the admissions committee of a state law school developed an affirmative-action plan that came under fire, the Court apparently would find it unconstitutional for any higher authority to intervene unless that authority traditionally dictated admissions policies. As a constitutional matter, the dean of the law school, the faculty of the university as a whole, the university president, the chancellor of the university system, and the board of regents might be powerless to intervene despite their greater authority under state law.
After today’s decision it is unclear whether the State may set policy in any area of race relations where a local governmental body arguably has done “more” than the Fourteenth Amendment requires. If local employment or benefits are distributed on a racial basis to the benefit of racial minorities, the State apparently may not thereafter ever intervene.[ref]Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 499 n.14 (1982).[/ref]

Given that Justice Kennedy identifies strongly with Powell’s views on race—demonstrated by his reliance on Justice Powell in Grutter and Fisher—and that he purposefully avoided basing the Romer opinion on Hunter and Seattle School District, it could well be that he shares Powell’s concern about the scope of the political restructuring doctrine. The federalism concern underlying Justice Powell’s dissent in Seattle School District is likely to strongly influence Justice Kennedy’s vote in Schuette. He has been protective of state sovereignty and autonomy in other contexts, most notably as a limiting principle for the Federal Commerce Clause power,[ref]See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012); United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995).[/ref] and in this past term’s decision striking down the Defense of Marriage Act.[ref]See United States v. Windsor, 133 S. Ct. 2675 (2013).[/ref] While his Fisher decision keeps a space, albeit a narrow one, for affirmative action programs against an equal protection challenge, he is likely to be sympathetic to allowing each state to decide for itself whether it wants to allow or ban affirmative action.
 

VI. Conclusion

 
It is likely that the Court will reverse the Sixth Circuit Court of Appeals in Schuette, and will hold that the Equal Protection Clause is not violated by the Michigan constitutional prohibition on affirmative action. Justice Kennedy and the four conservatives will form the majority, with Justices Ginsburg, Breyer and Sotomayor in dissent. However, Justice Kennedy is not likely to reject the political restructuring doctrine completely, which would presumably require overruling Hunter and Seattle School District. He is more likely to write an opinion that distinguishes those decisions, and declines to extend them to control in Schuette.
 
For example, he could distinguish Hunter, Seattle School District, and Romer (if he wants to address it) on the grounds that they involved state laws that made it politically more difficult for minorities to protect themselves against discrimination, thereby interfering with the core value of nondiscrimination in equal protection. In contrast, Proposition 2 makes it harder for minorities to gain preferential treatment, which arguably runs counter to the core value of nondiscrimination, and which he has said is presumptively unconstitutional unless able to survive strict scrutiny. He might well conclude that a measure that makes it politically more difficult to gain preferential treatment (which is not constitutionally protected) does not offend equal protection principles in the way that Hunter and Seattle School District viewed measures that made it more difficult to protect against racial discrimination (which is constitutionally protected).
 
If that is the outcome, the net effect of Fisher and Schuette will be that the opponents of affirmative action will not have achieved their primary goal—a national ban based on the U.S. Constitution—but they will be able to lobby for state-by-state prohibitions, without Supreme Court review. Justice Kennedy may have been the key vote that kept affirmative action “alive” (albeit barely) in Fisher, but his support of even that limited form of affirmative action will likely yield in Schuette to his state-sovereignty view of federalism.
 


Preferred Citation:

Robert H. Smith, Essay, Affirmative Action Survives Fisher (Sort of), but What About Schuette?, 1 Suffolk U. L. Rev. Online  65 (Sept. 29, 2013), http://www.suffolklawreview.org/Schuette-Smith.


Author Notes:

Professor of Law, Suffolk University Law School. The author appreciates the helpful comments of Professor Renee Landers, Professor Gerard Clark, and Justice John Greaney on a prior draft of this Essay.