I like to think I am unusually gifted at political prognostication because, in 2004, I predicted on my now-defunct personal blog that Barack Obama would be the Democratic presidential nominee in 2008. But today’s Supreme Court Fisher v. Texas II affirmative action decision compels me to be more modest about having any such abilities. Last fall, I wrote that “The bad news for my fellow critics of race-preferential admissions is that I predict… that the Supreme Court will not want to overturn Grutter and hold that student body diversity is not a compelling state interest that justifies racial preferences in admissions. The good news is that… the court will clarify that courts ought to be sufficiently rigorous in doing narrow-tailoring scrutiny that many real-world college affirmative action programs will fail the test.” My first sentence turned out to be right. But despite significant hedging by Justice Anthony Kennedy in his majority opinion, it is far from clear that following Fisher II would lead to the downfall of many real-world race preferential programs. Instead, Justice Alito may well be right to warn in dissent that this is a case of “affirmative action gone wild.” 

Justice Kennedy held in Fisher I that no deference is owed in determining whether a university’s use of race is narrowly tailored to achieve student body diversity. Also according to Fisher I, the Fifth Circuit Court of Appeals below had erred by confining the strict scrutiny inquiry too narrowly by deferring to the University’s good faith in its use of race. This lack of deference appeared to mean that the Constitution requires tougher judicial scrutiny of affirmative action programs than many knowledgeable observers understood Grutter v. Bollinger (the Supreme Court’s then-most recent previous major affirmative action case) to require.

So what happened when Justice Kennedy finally applied this newly elucidated narrow tailoring standard to the University of Texas’s program in Fisher II? Well… he found that the University articulated “concrete and precise goals” by cutting and pasting language from Grutter into its 2004 “Proposal to Consider Race and Ethnicity in Admissions,” notably “the destruction of stereotypes,” the “promotion of cross-racial understanding,” the preparation of its student body “for an increasingly diverse workforce and society,” and “the cultivation of a set of leaders with legitimacy in the eyes of the citizenry.” But these goals are better described as gauzy and abstract. It is inherently difficult to measure whether a particular admissions policy really has led to the erosion of racial stereotypes or increased cross-racial understanding among students. Yes, one could simply ask students, but social desirability bias looms large here. One could also ask persons who have advanced to leadership positions what kinds of college experiences prepared them for their roles. But a handful of top business leaders like Mark Zuckerberg and Bill Gates actually dropped out of college, and others may well have succeeded despite limited exposure to other racial groups. 

Still, the authors of the Proposal didn’t do even that much limited investigation: they simply assert that having a “critical mass” of racial and ethnic minority students in each college class would help achieve them. UT presented a chart showing that the number of small classes without any African-American students increased between 1996 and 2003. But the total number of small classes at UT also increased, meaning that perhaps UT could solve its classroom diversity problem by combining two 20-student sections of Introduction to Economics into one 40-student class. One would think that narrow tailoring would at least require them to address the possibility. In any case, if the goals listed above do not qualify as, in Justice Kennedy’s phrase, “elusory or amorphous,” then I find it hard to imagine what goals could.

Kennedy also found that the university has provided a “reasoned, principled explanation” for its decision to pursue these goals. Once again, he cites to the superficial 2004 Proposal as evidence for this conclusion. He also cites to depositions of admissions officers taken. But it is hardly surprising that personnel hired in part to advance a particular program would agree with it. If the “reasoned, principled academic explanation” requirement of Fisher I merely requires producing some employees who can mouth the right magic words, then it is not much of a challenge for the typical university to meet. 

On the other hand, there are some passages in the opinion that give glimmers of hope to future plaintiffs. Kennedy notes that Fisher is factually sui generis because of Texas’s Top Ten Percent Plan, and that much was unknown when Fisher first brought her suit about how the Top Ten Percent Plan would affect racial diversity at UT. He concludes from this that “The fact that this case has been litigated on a somewhat artificial basis, furthermore, may limit its value for prospective guidance.” Still, the analysis of “concrete and precise goals” and “reasoned, principled explanation” that I discussed above is sufficiently deferential that it is hard to imagine what facts about the Top Ten Percent plan could have come out that would compel a different result. Further, this analysis essentially turns the “narrow tailoring” component of strict scrutiny on its head. If relevant facts about whether a discriminatory program is narrowly tailored are missing, real strict scrutiny requires striking it down, not upholding it until they become available. 

The majority opinion also states that “Through regular evaluation of data and consideration of student experience, the University must tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest… The type of data collected, and the manner in which it is considered, will have a significant bearing on how the University must shape its admissions policies to satisfy strict scrutiny in the years to come.” Here, Kennedy may be nodding at the mismatch research, which indicates that affirmative action is backfiring by placing racial and ethnic minority students at institutions that are a poor fit for them given their past academic preparation. Indeed, there is some data showing that such backfire is happening at UT(see p. 4 of the PDF). But the problem is that UT has very little incentive to actually gather relevant data and evaluate it appropriately. Universities are often under considerable pressure from donors, outside foundations, student groups, and internal diversity and equity administrators to keep race preference programs and even expand them. The typical plaintiff also lacks the resources for extended discovery disputes with admissions offices. If UT can continue to protect its program by sticking its head in the sand and not gathering many facts about how it actually works, it probably will. 

Another odd turn of phrase—“The University’s examination of the data it has acquired in the years since petitioner’s application, for these reasons, must proceed with full respect for the constraints imposed by the Equal Protection Clause”—exacerbates my pessimism about how this analysis will play out. Few of us would say, “In driving to work tomorrow, you must proceed with full respect for the constraints imposed by the traffic laws” instead of “When driving to work tomorrow, you must follow the traffic laws.” Phrasing it in the former way suggests a lack of seriousness about the constraints. 

Long as this post is already, much more can be said about Fisher II. For other perspectives, I recommend Roger Clegg at National Review, Ilya Shapiro at Cato, Jonathan Adler at the Volokh Conspiracy, the still-growing SCOTUSblog Symposium, and my husband Ilya Somin, also at Volokh.