In a surprise decision, the Supreme Court on Thursday upheld the use of race in university admissions. But the hedgy, compromise opinion by Justice Kennedy will cause so much litigation that few universities will be able to afford it.
The poster child for the case, Fisher v. University of Texas, is a now-twentysomething named Abigail Fisher, who claims she didn’t get in because UT preferred non-white candidates over her.
The real plaintiff, though, is the far-right Project on Fair Representation, funded by the far-right Bradley Foundation, Searle Freedom Trust, and Koch-founded Donors’ Trust. That organization, headed by conservative activist lawyer Edward Blum, has fought against diversity initiatives worldwide and was also behind the successful effort to destroy the Voting Rights Act.
Today’s ruling, though technically a loss, is actually yet another success for the Kochs, Searles, and Bradleys. Because while so-called “affirmative action” was narrowly upheld in this case, the ruling was so narrow that it paves the way for more lawsuits against more universities in the future. Indeed, Blum has promised exactly that.
In fact, the Court placed three significant burdens on universities seeking to include race in their admissions considerations.
First is the purpose. Most people think “affirmative action” exists to remedy past discrimination. And indeed, it once did. For the past 20 years, however, it is only allowed in educational contexts for the purposes of promoting diversity. As Justice Kennedy wrote in today’s case, “the compelling interest that justifies consideration of race in college admissions is not an interest in enrolling a certain number of minority students. Rather, a university may institute a race-conscious admissions program as a means of obtaining “the educational benefits that flow from student body diversity.”
Second is the limited discretion universities have. It’s up to universities, the Court said, to determine how important diversity is. But it’s not up to them to decide how to achieve it. In Justice Kennedy’s words, “the university bears the burden of proving a ‘nonracial approach’ would not promote its interest in the educational benefits of diversity ‘about as well and at tolerable administrative expense.’
In other words, if there’s any other way to achieve diversity goals, that’s what universities have to do. They can only factor race into admissions as a last resort. And that question will be reviewed by courts – indeed, the last time the Fisher case came to the Supreme Court, the Court said that it will not defer to universities’ “good faith” in saying that the requirements are necessary. The schools have to prove it.
Third, race can’t be a direct factor in admissions. In the University of Texas’s program, Justice Kennedy said, “race is but a factor of a factor of a factor.” If a student doesn’t get in because she’s in the top ten percent of her class, then a complex set of factors gets put into play, one of which maybe, sometimes, is race.
As this case indicates, this third requirement is the messiest. A simple “plus” is too much. A numerical quota is definitely not allowed. But some vague “holistic consideration” is okay. And what that means will be up to a judge.
As a result, these cases get into the weeds, fast. Justice Kennedy’s opinion, for example, quickly devolved into the particulars of UT’s program. There’s a bit of a game everyone has to play, counting race but not counting race, factoring it in somewhat, but not too much. It’s messy.
These cases also get expensive. Since race is only one factor in some vague, holistic evaluation, basically, every school’s program is going to be a little bit different. And since the “Project for Fair Representation” has an effectively infinite amount of money, they can just sue everybody all the time. Indeed, they’re already looking for new plaintiffs at University of North Carolina and University of Wisconsin.
Which means that public universities, with their budgets slashed by Republican governors like Scott Walker and with barely enough cash to pay professors, have to pay for endless litigation.
Does Fisher still sound like a “victory for racial equality” – as the Southern Policy Law Center declared it today?
Only if by “victory” one means “not a total washout, but a messy legal regime that will cost cash-strapped institutions millions of dollars to litigate.” Really, the victory goes to the Koch/Searle/Bradley consortium, because the cost of diversity is now so high that few institutions can afford to pay it.
Indeed, even Justice Kennedy’s opinion said that the unique parameters of the UT program “may limit [the case’s] value for prospective guidance.”
To be sure, the case does give some hope to civil rights activists. Justice Kennedy might easily have swung the other way in this 4-3 case (Justice Kagan was recused because she argued the case years ago as solicitor general; Justice Garland was recused because he isn’t yet Justice Garland). Indeed, his frustration at oral argument – at one point kvetching that the Court was hearing the same case twice—suggested that he might be done with the whole idea of race-conscious admissions.
In addition, the Court’s opinion refused to say how much diversity is enough (the plaintiff said UT already had “critical mass” of non-white students) or how much the racial considerations had to matter (perversely, the plaintiffs argued that since they didn’t make that much of a difference, they should be scrapped entirely).
To be sure, the Court’s balancing was far too much for Justice Thomas, who wrote to say that any use of race in admissions is “categorically prohibited,” and Justice Alito (with whom Chief Justice Robert joined), who said that “something strange” happened since the first Fisher case, since the nebulous standards the Court upheld are functionally the same as no standards at al.
Tellingly, Justice Alito’s dissent was twice as long as Justice Kennedy’s majority opinion, going into even more detail about UT’s program, and picking apart UT’s statements about it at oral argument. Justice Alito, too, had to get into the weeds.
Now, if it is true race-conscious admissions are about “striking this sensitive balance” between the compelling interest in diversity and the constitutional right of all people to enjoy equal protection of the laws, then balancing various factors against one another is what organizations and courts simply have to do. On the other hand, as Justice Alito’s dissent convincingly demonstrates, it’s hard to do this—let alone to do it objectively.
That, alas, will mean more lawsuits, as long as the Koch Brothers can afford to pay for them, which is probably for a very long time.