“There are not many dull moments in the debate about race preferences in university admissions. Nevertheless, the issuance of the recent Fisher v. University of Texas case has often been painted as one of them,” were the beginning sentences of an essay I wrote for the Federalist Society’s Engage about Fisher I last year. It continued: “‘In with a bang, out with a fizzle’ is the title of one account of Fisher, and ‘Fisher’s big news: No big news’ is the headline of another. But perhaps this perennially hot debate has not cooled down after all, and Fisher is better understood as a cliffhanger—one akin to the ending of Frank Stockton’s 1882 “The Lady or the Tiger?,” which famously leaves the protagonist uncertain whether a beautiful woman or a starved tiger will emerge from behind the door he is about to open.”
Since then, several more chapters of this potboiler have been completed. In July 2014, a 2-1 panel decision upheld the University of Texas at Austin’s (“UT”) use of race preferences in admissions as constitutional in an opinion that looked awfully like a tiger to critics of race preferences and a lady to preference supporters. It essentially brushed over the Supreme Court’s careful instructions on remand to scrutinize more closely whether UT’s use of preferences are narrowly tailored to achieve the constitutional goal of attaining the educational benefits of student body diversity. In light of this seeming failure to apply appropriate scrutiny, many observers predicted that the highest court would take up the Fisher case again—a prediction that turned out to be correct.
So will a lady or a tiger come out next June (or whenever it is that Fisher II is published?) The bad news for my fellow critics of race-preferential admissions is that I predict it will be a tiger—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 I speculate it will be a paper tiger—i.e. 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.
Why this modest optimism? First, it’s important to remember what the Court didn’t do in Fisher I. UT’s program is unusual in that its Top Ten Percent program already yields a fairly racially diverse class without recourse to racial preferences. UT therefore only needs to use race in the relatively small number of decisions it makes outside of the Top Ten Percent system. In Fisher I, the Court could therefore have issued to Ms. Fisher what Gail Heriot* has called a “good for this case only” ticket—banning consideration of race in non-Top-Ten Percent decisions at UT, but essentially leaving the core doctrine of Grutter intact. Instead, it called for tight judicial scrutiny of the means used to achieve Grutter’s approved end of diversity on campus—scrutiny tighter than what the Fifth Circuit and perhaps most other well-informed observers previously understood Grutter to require. That the court took the case a second time after the Fifth Circuit purported to apply the newly clarified standard further underscores that this scrutiny is supposed to be rigorous.
Second, the history of Fisher I’s timing might give hints as to what the Court might do with Fisher II. Last time around, many observers (including me) were puzzled as to why it took eight and a half months to issue a brief 13-page opinion. Since then, Supreme Court journalist Joan Biskupic published a new biography of Justice Sonia Sotomayor indicating that Fisher I indeed had a complicated backstory. According to Biskupic, the Justices abandoned a much more sweeping anti-preferences opinion after reading a blistering Sotomayor dissent, part of which was re-purposed into her Schuette v. BAMN dissent. Because a majority of the Court was prepared to issue a much more anti-preferences opinion then, they are likely prepared to issue one now. Yes, one might also argue that any justices intimidated by a fierce Sotomayor dissent last go-round time might also be inclined to punt again. But that theory does not explain well why then the justices chose to grant certiorari. Plus, any justices who thought that Fisher I would sufficiently instructed the lower courts to be adequately tough in scrutinizing racial preferences has been disabused of that hope.
Why might the Court decide that UT’s program is insufficiently narrowly tailored to serve the compelling interest in achieving student body diversity? One, the court might look to see if UT’s policy is truly about maximizing student body diversity or is really serving some other purpose. The size of racial preferences at most colleges and universities sharply contrasts with the small to non-existent preferences given to students who increase diversity in other ways, such as evangelical Christians, political conservatives or Communist Party members. The typical selective university’s lack of interest in increasing diversity of opinion along these other dimensions shows that these programs are not tailored to create vibrant classroom discussions. Instead, their design makes much more sense if one assumes that they are built for some other purpose, such as remediating historical wrongs or proportional representation of certain minorities for its own sake. But these purposes, however worthy, are not constitutional purposes, and programs narrowly tailored to serve them must be struck down as illegal.
Two, the Court should take a look at the current mismatch literature when evaluating narrow tailoring. A growing body of empirical evidence suggests that racial and ethnic minority students who receive admissions preferences are actually learning less than they would be if they attended institutions where their entering credentials are closer to those of the median student. Because of racial preferences, there likely are now fewer African-American lawyers, doctors, college professors, engineers and scientists than there would be without affirmative action. If the empirical evidence shows that racial preferences are backfiring, a narrowly tailored program ought to take account of the backfire and try to reduce or eliminate the problems associated with big racial preferences. Yet it appears most selective universities are not doing so: a series of recent FOIA requests by the Center for Equal Opportunity for records showing consideration of mismatch in admissions at 22 selective public universities yielded no such records.
Finally, the court could dig deeply into whether UT’s program is narrowly tailored to achieve the educational benefits of diversity. The word “educational” here potentially does a great deal of work. Many real-world racial preference programs are not really about education or academics at all. Instead, they are often motivated by pressure from actors outside the university, such as state legislatures, private foundations, and federal accrediting agencies. The structure of many preference programs often only makes sense if understood in light of these outside groups’ intense interest in them. A narrow tailoring analysis that requires colleges to show that they would have designed their racial programs in exactly the same way absent pressure from external groups would likely be fatal for many actually-existing programs.
* * * * *
Because Fisher is a complex case, I have not come close to discussing all possible avenues the Court could explore in this case. For a sampling of other perspectives, I encourage readers to check out my co-blogger Ilya Shapiro’s Supreme Court Preview post and also SCOTUSBlog’s comprehensive symposium.
*I work for Gail Heriot at the U.S. Commission on Civil Rights. The views expressed in this piece are not necessarily those of Gail Heriot, the Commission, or anyone other than me.
**I was counsel of record in amicus briefs filed at earlier stages in the Fisher litigation, but was not involved with any briefs this round.