On Thursday, the Supreme Court decided Fisher v. University of Texas at Austin (Fisher II) for the second time, this time affirming the Fifth Circuit’s decision by a 4-3 vote to uphold the public university’s consideration of race for applicants not admitted through its top 10% program. This marks an end to the eight-year litigation battle with a winding procedural history. On its face, the decision does not mark a significant change in the Court’s affirmative action jurisprudence — but several of the Justices seem to be laying the groundwork for future decisions.

The Background

Abigail Fisher, a white applicant to the University of Texas at Austin in 2008, initially filed suit in federal district court challenging her rejection, alleging the University’s consideration of race in its undergraduate admissions process was an unconstitutional violation of the Equal Protection Clause.[1] The University admits approximately 75% of its class through the state’s top 10% program, which grants automatic admission to state universities to Texas high school students graduating in the top 10% of their class.[2] Fisher did not graduate in the top 10% of her class, and thus her application was considered under the holistic review process the admissions committee used for the remaining applicants, which analyzed a number of academic and personal factors, including race.[3] Under the Supreme Court’s equal protection jurisprudence, all race classifications imposed by a government actor must be subject to strict scrutiny, which requires a compelling government interest and a program narrowly tailored to serve those goals.[4] The district court applied strict scrutiny and found the University’s program narrowly tailored to the compelling state interest in educational diversity,[5] and the Fifth Circuit affirmed.[6] The Supreme Court granted certiorari and decided Fisher I in 2013.[7] The holding in Fisher I did not actually deal with the merits of the University’s admission plan — rather, it remanded to the Fifth Circuit to apply the proper standard. The Fifth Circuit had interpreted the Court’s previous holding in Grutter to permit substantial deference to the University’s good faith attempt at creating its admissions program, both with respect to its compelling interest and narrow tailoring. The Supreme Court found that, at least on the point of narrow tailoring, strict scrutiny analysis permitted no deference to the University.[8]

On remand, the Fifth Circuit again upheld the admissions program, finding it narrowly tailored even without deference to the University on that point.[9] Surprisingly, the Supreme Court again granted certiorari in the case. Many feared this might mean an end to affirmative action, at least in its current form.[10] After all, as the district court had explained, “it would be difficult for UT to construct an admissions policy that more closely resembles the policy approved by the Supreme Court in Grutter.”[11] Adding to these worries was Justice Kagan’s recusal based on her participation in the case as Solicitor General, meaning there were only three liberal Justices that could confidently be predicted to affirm. While it only takes four Justices to grant cert, many were skeptical that the four conservative Justices would have voted to take the case again if they knew it would only result in a 4-4 tie. With the unexpected death of Justice Scalia in February, however, there was a strong chance of a precedential majority opinion.

Fisher II

In many ways, Fisher II is a strong affirmation of civil rights. Justice Kennedy wrote for the majority in both Fisher I and Fisher II, and reiterated his original stance that Fisher I took “no position on the constitutionality of the admissions program at issue in this case,” and remanded the case only to correct the narrow tailoring standard.[12] His opinion reiterates the Court’s standard in Grutter and reaffirms the importance of educational diversity in promoting cross-racial understanding and dismantling stereotypes.[13] It accepts all of the University’s asserted interests in the benefits of educational diversity, including preparing students for an increasingly diverse society and workforce, cultivating leaders “with legitimacy in the eyes of the citizenry,” and providing an academic environment that promotes the exchange of different ideas and cultures.[14]

Also significant, is that Justice Kennedy is attuned to many of the problematic aspects of Fisher’s argument. The irony of her challenge to the holistic process is not lost on him. He points out that she was not admitted through the rigid, percentage-based plan that fills the majority of the class and does not consider race at all. He writes: “It seems quite plausible, then, to think that Petitioner would have had a better chance of being admitted to the University if the school used race-conscious holistic review to select its entire incoming class.”[15] He also critiques her suggestion that the University admit all students through a percentage-based plan, even citing Justice Ginsburg’s dissent in Fisher I, which keenly pointed out that percentage plans are “adopted with racially segregated neighborhoods and schools front and center stage,” and thus provide perverse incentives to keep students in under-resourced schools.[16]

While the Fisher II opinion is a win for civil rights in that it retains the former affirmative action jurisprudence and affirms universities’ right to consider race among other factors in its goals of creating a diverse student body, some of its language also puts universities in a tough position. It asks that the University’s diversity interest not be too “amorphous,” but the University also cannot state a numerical goal.[17] On the one hand, Justice Kennedy says public universities may serve as laboratories of justice, as states do, to test out different methods to achieve their diversity goals. However, schools may not necessarily leave their programs in place — they have an “ongoing obligation” to deliberate and reflect on their policies, and essentially must scrutinize and update their program with the changing doctrine.[18] For now, this warning may not mean much in practice, but it might be a signal to schools to be on a lookout for future decisions.

Looking Ahead

Perhaps just as interesting as Fisher II’s holding is its lengthy discussion of affirmative action policies not directly at issue in the case. Both Justice Kennedy’s majority and Justice Alito’s dissent spend considerable time discussing the constitutionality of percentage plans and the effects of affirmative action on “over-represented” minorities, such as Asian-American students.

Despite acknowledging that the top 10% plan was not challenged in the case, Justice Kennedy embarks on a lengthy discussion of its history and its criticisms. Because it was not challenged, the record contains little data on its efficacy, and thus this decision’s “value for prospective guidance” on the top 10% plan may be limited.[19] Furthermore, the fact that this program was not challenged “does not diminish… the University’s continued obligation to satisfy the burden of strict scrutiny in light of changing circumstances.”[20] It is hard to tell if this is an ominous forewarning about Kennedy’s opinion on the constitutionality of the top 10% plan, or a mere clarification that the Court’s decision is making no statement on the plan either way.

Justice Alito, in a 50-page dissent (that he read from the bench) joined by Justice Thomas and Chief Justice Roberts, also takes the opportunity to comment on the top 10% plan. In particular, he takes issue with what he perceives to be the University’s argument that the plan is not already admitting qualified minority applicants, and the holistic review is needed to admit minority applicants with higher SAT scores.[21] He goes on to criticize the majority for not remanding the case for trial for further fact-finding and instead deferring to the University’s judgment that the top 10% plan was not achieving sufficient student diversity on its own.[22]

Justice Kennedy and Justice Alito also cite competing amicus briefs on the issue of discrimination against Asian-American students at the University of Texas. Justice Kennedy emphasizes that plaintiffs have made no showing that the holistic plan cannot benefit other races — like whites and Asian-Americans — and cites the Brief for Asian American Legal Defense and Education Fund for that proposition that discrimination against Asian-Americans at UT Austin is “entire unsupported by evidence in the record or empirical data.”[23] Justice Alito, on the other hand, claims that UT’s plan discriminates against Asian-American students, and cites the Brief for Asian American Legal Foundation’s assertion that UT does not value the contributions of Asian-American students to diversity as compared to Hispanics.[24] The complaint in Fisher II did not contend directly with the treatment of Asian-American students, but the citations to these briefs may be a signal that the Court has its eyes on other affirmative-action related lawsuits making their way through lower courts.[25]

Civil rights activists are — and should be — relieved by Fisher II, but should also be wary that the fight may not be over. On the bright side, Justice Kagan will likely not need to recuse herself from a future case. Still, the importance of a confirmation of a ninth Justice, therefore, looms large over the future of affirmative action, and many civil rights issues ahead.

[1] Fisher v. Univ. of Texas at Austin, 645 F.Supp.2d 587, 590 (W.D. Tex. 2009).

[2] Fisher v. Univ. of Texas at Austin (“Fisher II”), 2016 WL 3434399 at *5 (2016).

[3] Id. at *6.

[4] Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).

[5] Fisher, 645 F.Supp.2d at 612.

[6] Fisher v. Univ. of Texas at Austin, 631 F.Supp.3d 213, 247 (5th Cir. 2011).

[7] Fisher v. Univ. of Texas at Austin (“Fisher I”), 133 S.Ct. 2411 (2013).

[8] Id. at 2420.

[9] Fisher v. Univ. of Texas at Austin, 758 F.Supp.3d 633, 646 (5th Cir. 2014).

[10] See, e.g., Elias Isquith, “Extremely Inappropriate”: The Supreme Court and the Sneaky Plot to Kill Affirmative Action, Salon (Dec. 11, 2015). http://www.salon.com/2015/12/11/extremely_inappropriate_the_supreme_court_and_the_sneaky_plot_to_kill_affirmative_action/.

[11] Fisher, 645 F.Supp.2d at 612.

[12] Fisher II at *8.

[13] Id. at *10.

[14] Id.

[15] Id. at *8–9.

[16] Id. at *16–17 (quoting Fisher I, 133 S.Ct. at 2433 (Ginsburg, J., dissenting).

[17] Id. at *12.

[18] Id. at *19.

[19] Id. at *9.

[20] Id.

[21] Id. at *34 (Alito, J., dissenting).

[22] Id. at *38 (Alito, J., dissenting).

[23] Id. at *6.

[24] Id. at *28 (Alito, J., dissenting).

[25] See, e.g., Aidan F. Langston, Admissions Lawsuit Continues in ‘Slow Motion,’ The Harvard Crimson (Feb. 25, 2016), http://www.thecrimson.com/article/2016/2/25/admissions-lawsuit-slow-motion/.