Affirmative Action's Ominous Future

AP Photo/Charles Dharapak

One thing the three most anticipated cases of the recently completed Supreme Court had in common: They left the big questions unanswered. Hollingsworth v. Perry, by ducking the question on jurisdictional grounds, left the constitutional status of state bans on same-sex marriage unresolved. Shelby County v. Holder theoretically permitted Congress to update the preclearance formula to put the teeth back into the Voting Rights Act. However, the Court gave lower courts and future Supreme Courts no useful guideline for how Congress could proceed. (Admittedly, the answer for how Congress can constitutionally proceed, at least for the Roberts Court, is almost certainly "it can't.") The term's clearest passing of the buck was the decision in the affirmative-action case, Fisher v. University of Texas. While many people (including me) expected the Court to use the case as a vehicle to declare virtually all affirmative action in public higher education unconstitutional, in the eight long months between the oral arguments and the decision this June, the Justices decided to tread lightly, issuing a brief opinion sending the issue back to the lower courts. However, the next case on affirmative action the Court plans to hear next term, Schuette v. Coalition to Defend Affirmative Action, may prove to be the big stick that finally dismantles the system. 

What then, does Fisher suggest about the future of affirmative action?

The most recent analogy to the UT v. Fisher decision is Northwest Austin v. Holder. In that 2009 case, the Court unanimously but narrowly decided a Voting Rights Act case without ruling on the constitutionality of the Act's preclearance requirements. (Chief Justice's Roberts's opinion, however, had language implying hostility to the Voting Rights Act, including his exhumation of the concept of "equal state sovereignty" from the ashes of the Confederacy.) The unanimous opinion didn't reflect a Court reaching consensus on the Voting Rights Act. Instead, it showed a Court where the sitting conservatives proved willing to bide their time on voting rights, while the sitting liberals preferred kicking the can down the road. When the Court squarely faced the question of whether the preclearance formula established by Congress was constitutional this year in the case Shelby County v. Holder, then, it's not surprising that this artificial consensus shattered, with a 5-4 decision using the logic outlined in Northwest Austin to rule Section 4 unconstitutional. The dismaying decision was a long time coming. 

Fisher seems to be a similar story. The case was decided 7-1, with only Justice Ginsburg dissenting. (As he did in Northwest Austin, Justice Thomas wrote a concurrence urging the Court to go further.) Superficially, the Court merely upheld the standard already set by the Supreme Court in the 2003 case Grutter v. Bollinger, holding that affirmative action should be evaluated by the same "strict scrutiny" as any other racial classification, while maintaining the practice isn't always unconstitutional. Justice Kennedy's majority opinion in Fisher contained language, however, that seems subtly more hostile to affirmative action, similar to Chief Justice Robert's ominous words in Northwestern Austin. "The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal," the opinion explains, "and on this point, the University receives no deference" [My emphasis]. Under the standard established by Fisher, the lower Court will almost certainly rule the U.T. program unconstitutional.

In fact, it's hard to imagine an existing program in higher education the current Court majority would vote to uphold as constitutional—just as it is nearly impossible to imagine a preclearance formula for the Voting Rights Act that this Court would approve—even if Kennedy is unwilling to hold affirmative action unconstitutional writ large. It's even possible that Kennedy will ultimately be willing to take the next step. One reason for the Court deciding to write a minimalist opinion in Fisher after sitting on the case for the better part of a year is that the facts of Fisher were not very favorable to opponents of affirmative action. Abigail Fisher, the plaintiff, probably would not have been admitted to U.T. Austin even under entirely race-neutral admissions criteria, making her a less-than-ideal vehicle for demonstrating the alleged injustices of affirmative action. Given a different set of facts, the Roberts Court may well be willing to go further.

However, the upcoming caseSchuette v. Coalition to Defend Affirmative Action, concerns the constitutionality of bans on affirmative action, rather than focusing on the constitutionality of affirmative-action programs. It's unlikely to overturn Grutter since the Court declined to do so in Fisher. In 2006, Michigan voters passed Proposal 2, which banned all affirmative-action programs by state agency. In November of last year, a badly divided Sixth Circuit ruled that Proposal 2 violated the equal protection clause of the Fourteenth Amendment. According to the majority opinion, Proposal 2 was unconstitutional because it "reallocates political power or reorders the decision-making process in a way that places special burdens on a minority group's ability to achieve its goals through that process."

This decision's odds of being upheld by the Supreme Court are near to nil. In all candor, it might be an uphill struggle for the opinion to get even one vote. I strongly believe that most affirmative-action programs are constitutional and deplore Proposal 2 as a policy matter, but it's a stretch to argue that Michigan is required to have affirmative-action programs. However, this case presents very different conceptual issues than Fisher did. Since it would be entirely possible to overrule the Sixth Circuit without saying anything about the constitutionality of affirmative action, it is very unlikely that the Court will use the case as a way to resolve the issues Fisher didn't. And so the can will likely be kicked down the road once more, hopefully awaiting a more favorable Court majority in the near future.

For the time being, it is difficult but not impossible for states to use affirmative action in higher education. I continue to believe that the states should be given considerably more latitude and that class-based affirmative action is an inadequate substitute. (And as Justice Ginsburg pointed out in her dissent, to the extent that programs like Texas's policy of granting admission to the top 10 percent of every high school class act as a reasonable simulacrum of affirmative action, it's because they're not actually "race-neutral" in any meaningful sense at all.) Given the general hostility of this Court not only to affirmative action but to civil rights in general, the best outcome would be for the Court as currently constituted to say as little as possible.

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