Preliminary Fisher round-up

June 24, 2013 | By ANASTASIA BODEN

It’s only been a few hours since the Court announced its 7-1 opinion in Fisher v. University of Texas.  The Court upheld (for the time being) diversity in education as a legitimate goal that universities could pursue, but instructed the Fifth Circuit to apply a strict level of scrutiny to the way the University of Texas-Austin chose to do so.  Already commentators have a great deal to say about the opinion.

Today’s opinion generated debate over class-conscious admissions policies, which Richard Kahlenberg argues benefit minorities more than race-conscious admissions policies.  Certainly schools should see disparities as a reason to use alternative race-neutral admissions criteria—rather than as a reason to discriminate.  Measures like increasing financial aid and decreasing reliance on test scores are constitutionally sound, and harken to Justice Thomas’ dissent in Grutter.  In that case, Justice Thomas noted that the law school “of its own choosing, and for its own purposes, maintains an exclusionary admissions system that it knows produces racially disproportionate results. Racial discrimination is not a permissible solution to the self-inflicted wounds of this elitist admissions policy.”  Justice Thomas repeats this theme in his concurrence in Fisher, when he notes that universities do not have a compelling interest in their own existence, let alone an interest in the elitist policies which lead to racial disparities in the first place.  Rather than allowing universities to remedy the effects of their own policies by discriminating, he says, the Court should require the school to close its doors or “stop discriminating against applicants based on their race.”

Much has been made of Justice Thomas’ concurring opinion, in which he likens the arguments made by proponents of affirmative action to those made by proponents of segregation.  Over at the National Review, Charles Cooke defends Thomas by noting the resemblance of Thomas’ remarks to those of Frederick Douglass.

While many are disappointed SCOTUS failed to make a broader decision today, Ilya Shapiro at the Cato Institute notes that the Fisher decision is a victory for judicial review.  Ilya Somin at Volokh is calling Fisher a “significant victory for opponents of affirmative action” despite its limitations.  Reuters notes that “Justice Anthony Kennedy made it clear that the program is not on solid legal ground and could still be overturned.”  Given the Justice’s tone, The Economist’s Democracy in America blog opines that Ms. Fisher’s team may be regretting its decision to target UT’s policy only, rather than challenge Grutter and Bakke directly.

But would a squeakier wheel have gotten the oil?  That is, if Fisher had asked the Court to overturn those cases, would it have done so?  It’s seems more likely that Justice Kennedy’s statement that Fisher had not asked the Court to overturn those cases was merely a pretext for punting.  As David Bernstein muses, it took quite a long time for the Court to issue such a modest opinion.  The opinion’s outcome was more likely due to Justice Kennedy’s unwillingness to go that far than Fisher’s failure to ask the Court for such an outcome.

Nevertheless, Justice Kennedy went to great lengths to demonstrate the success of Texas’ earlier race-neutral approaches, and to point out the Court’s disagreement over whether diversity in education is a compelling state interest.  Perhaps Noah Feldman says it best at Bloomberg when he deems the Court’s holding: tick-tock.

Tom Goldstein at SCOTUSblog compiles the choice quotes from the opinion here.  On SCOTUSblog’s liveblog, Amy Howe had called Kennedy’s assessment that, “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity,” the opinion’s “money quote.”  Such a statement indicates the bar for universities who wish to pursue diversity through race-conscious policies is very high.  But as PLF argued in its amicus brief in Fisher, any supposed benefits that come from race-conscious policies are highly dubious, and can be achieved through race-neutral policies that do not have the same negative effects as race-conscious policies.