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The Future of Affirmative Action: Justice Kennedy Is the Key

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The United States Supreme Court recently agreed to take up the case of Fisher v. University of Texas. The case will once more put the issue of affirmative action squarely into national focus just eight years after the Court upheld the use of race in the University of Michigan's admissions decisions in Grutter v. Bollinger. By a 5-4 vote, the Court in Grutter upheld the use of race in university admissions, but placed strict limits on the practice. Now that the composition of the Court has changed, attention will fall on Justice Kennedy, the current Court's critical swing vote. Since recent appointee Justice Kagan has recused herself from the case, on account of her participation in these cases in her previous role as solicitor general, the stakes are higher than ever. One way or the other, Justice Kennedy will decide the fate of affirmative action. His dissenting opinion in Grutter is a roadmap to the outcome in Fisher.

The Court in Grutter held that promoting racial diversity in institutions of higher education is a compelling governmental interest that serves to ensure that the pathways of opportunity are open to persons of all backgrounds and races. This is especially true for flagship institutions such as the University of Michigan or the University of Texas. The Court also emphasized the importance of diversity for these institutions in terms of our broader democratic society. The Court reasoned that if the training grounds for our nation's leaders were not "visibly open to talented and qualified individuals of every race and ethnicity," then these institutions -- and our democracy more generally -- might lose "legitimacy in the eyes of the citizenry." In addition, the Court underscored the vital importance of academic freedom, of giving universities the flexibility they need to select the student body that will prepare their students for academic success. The Court explained that creating a diverse student body promotes the exchange of diverse viewpoints, reduces stereotyping and prejudice, and generates cross-racial understanding.

While the Court upheld the University of Michigan Law School's admissions procedure, the Court placed strict limits on such decision-making to safeguard the interests of nonminority students. The Court required that any race-conscious admissions procedure be "narrowly tailored." The Court indicated that a narrowly tailored process would include consideration of race-neutral alternatives and would apply a 'holistic' approach to admissions decision-making, ensuring that race is not a decisive factor in any given admissions determination. In particular, a university may not set a quota or pursue a numerical target, but may seek to enroll a 'critical mass' of underrepresented students. In a companion decision, the Court struck down the University of Michigan's undergraduate admissions procedure for failing to meet the requirements of narrow tailoring.

Ultimately, Grutter was decided by a 5-4 vote. While Justice O'Connor, writing for the majority, held that the University of Michigan Law School's admissions plan was narrowly tailored, Justice Kennedy remained unconvinced. To explain his disagreement, Justice Kennedy authored a separate, dissenting, opinion. Justice Kennedy's dissenting opinion in Grutter provides a clear roadmap for his ruling in Fisher.

In his dissenting opinion, Justice Kennedy agreed with Justice O'Connor that the proper rule for evaluating affirmative action derives from Justice Powell's opinion in the 1970s Bakke decision, an opinion had not enjoyed clear support of a majority of the Court until Grutter. In his opinion in Bakke, Justice Powell asserted that promoting diversity is a compelling government interest that would justify the use of race-conscious admissions. However, such a program must be narrowly tailored to safeguard the rights of innocent non-minority students. Therefore, it follows that Justice Kennedy, like Justice O'Connor, believes that promoting racial diversity is a compelling governmental interest, and would uphold any affirmative action program that is narrowly tailored. However, unlike Justice O'Connor, who voted to uphold the University of Michigan Law School's holistic admissions plan, Justice Kennedy did not believe that University of Michigan's diversity plan was narrowly tailored. In particular, Justice Kennedy cited the fact that the narrow fluctuation band of minority enrollment over the years "subverted individual determination." In addition, Justice Kennedy was concerned that the undue attention to the 'daily reports', which updated university admissions administrators on the number of minority applications accepted, undermined the individualized review throughout the entire admissions process.

Given Justice Kennedy's agreement broad agreement with Justice O'Connor that Justice Powell's opinion in Bakke is the proper rule for reviewing affirmative action policies, the Fisher decision will not result in the end of affirmative action. It does, however, seem likely that the Court in Fisher, in a 5-3 decision (since Kagan will not have a vote), will strike down the use of race in admissions currently employed by the University of Texas for failing the narrowly tailoring requirement.

The University of Texas currently reviews two pools for its undergraduate programs. By law, any student graduating in the top 10% of their high school class is automatically admitted to the University of Texas. The top 10% law was passed in the last 1990s following a federal case that struck down the University's affirmative action plan. The 10% ironically relies on underlying patterns of de facto segregation throughout the state to ensure diversity in the University's undergraduate programs. The vast majority of the students admitted to the University are enrolled through the top 10% law. The remaining applicants are then subject to the holistic race-conscious admissions procedure.

Ultimately, the Fisher case will more finely determine the kinds of restrictions that will be imposed on permissible affirmative action plans. Although the Petitioner, Abigail Fisher, argues that no consideration of race should be allowed, the Court will not lay down such a rule. Justice Kennedy, writing on behalf of the Court, will not vote to prohibit affirmative action, but will likely clarify the kinds of narrow tailoring requirements that are required to satisfy strict scrutiny and safeguard the rights of non-minority applicants under the equal protection clause.

The Fisher decision will likely resemble the Parents Involved in Community Schools v. Seattle School District No. 1 decisions from 2007 in which Justice Kennedy voted to strike down the voluntary integration plans at issue, but made clear that avoiding the harms of racial isolation and promoting racial diversity in K-12 education are compelling governmental interests, and set forth various methods by which it may be permissibly achieved. Furthermore, Justice Kennedy went out of his way to underscore the necessity of such plans for the future of our nation, given the endemic inequities in our K-12 system.

Although affirmative action will not be eliminated as a result of this case, the ultimate resolution is likely to be fact intensive. The precise range of minorities admitted under the general admissions pool will be carefully scrutinized. The success of the 10% plan in achieving an increase in minority enrollment may well doom the chances for arguing that additional race-conscious mechanisms are necessary to achieve a diverse student body. Each of these questions and more will be thoroughly argued and debated. Should Justice Kennedy make it practically impossible to achieve meaningful diversity using affirmative action, creative race-neutral alternatives designed to promote diversity in higher education, such as the 10% plan, more intensive recruitment of minority students to boost applicant pools, or examination of race proxies such growing up in neighborhoods of concentrated poverty, will likely become the focus of future efforts promote diversity in higher education.

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