In Fisher v. University of Texas, the Roberts Court took a big step away from the edge of a sharp cliff. In a striking, lopsided 7-1 vote, the Court, in an opinion by Justice Kennedy, ruled on narrow grounds, sending the case back for further review.
Clarifying the strict scrutiny standard, Justice Kennedy explained that the court below was wrong to defer to the University’s judgment; “there must still be a further judicial determination the admissions process meets strict scrutiny in its implementation.”
The lower court, Justice Kennedy wrote, should have given “close analysis to the evidence of how the process works in practice.” This was a modest refinement of the Court’s cases consistent with what the Court has said on many occasions about the strict scrutiny standard.
More important than what the Court said was what was not said.
The Justices did not announce any new limits on the use of race in university admissions and did not decide the constitutionality of the University policy challenged by Abigail Fisher. Justice Kennedy’s opinion in Fisher left basically unchanged the Court’s prior precedents in Bakke and Grutter v. Bollinger, which permitted universities to use race in modest ways to achieve a diverse student body, provided they can show their policies are narrowly tailored to the compelling goal of educational diversity.
Since the parties all agreed that Grutter’s framework was controlling, the Justices did not revisit that holding, leaving the issue an open one in future cases.
The big issue in Fisher was whether the Court’s conservative Justices would use the case to impose strict new limits on the use of race in university admissions.
Six years ago, in Parents Involved in Community Schools v. Seattle School District, Chief Justice Roberts, writing for four Justices, argued that the 14th Amendment requires absolute colorblindness: “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”
Justice Kennedy refused to sign on to that sweeping revision of constitutional principles, explaining that our commitment to “preserve and expand the promise of liberty and equality” and to “go beyond present achievements” and “confront the flaws and injustices that remain” sometimes requires that the government use race in order to foster equality. Fisher, a narrow ruling which permits use of race in university admissions in appropriate circumstances, is a significant win for Justice Kennedy’s view.
Only Justice Thomas would have jettisoned the precedent in Grutter and forbidden any use of race in university admissions.
In a lengthy concurring opinion, he claimed that “the lesson of history” is that use of race by the government is “never benign.” But, ironically, Justice Thomas, a committed originalist, ignored the most obvious history: the framing of the 14th Amendment. The Framers of the 14th Amendment were the originators of affirmative action; at the time of the framing of the Amendment, they repeatedly approved race-conscious assistance to African Americans, including measures to ensure equality of educational opportunity.
In writing the text, they rejected proposed language that would have forbidden racial oppression and assistance alike. For nearly 40 years, conservatives have refuse to grapple with, let alone answer, these basic facts of the 14th Amendment’s text and history. Justice Thomas’s opinion in Fisher continued this willful blindness.
Fisher does not break any new ground, but provides an important explication of the Constitution’s promise of equality for all persons.
Justice Kennedy’s 7-1 ruling recognizes that government may, in appropriate circumstances, use race in order to ensure a diverse, integrated student body and to provide pathways to professional life and leadership for all of the state’s residents regardless of race.
After years in which Chief Justice Roberts and others have expressed hostility to any use of race to foster equality, this is a big deal.
David H. Gans is director of the Human Rights, Civil Rights, and Citizenship Program at the Constitutional Accountability Center, and he was co-author of the Center’s amicus brief in Fisher v. University of Texas.
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