The Supreme Court on Affirmative Action: 5 Possible Outcomes

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Like a lot of veterans--or old fogies, take your pick--of the political uprisings of the late 60s and early 70s, I've watched the growth of the new college protest movement with avid interest. I was heartened by the determined young activists who stood up to entrenched racism at the University of Missouri. I've also applauded--with a few quibbles here and there--the many others who, inspired by the Black Lives Matter struggle, have raised demands for greater diversity on campuses across the country.

On December 9, those demands made their way to the Supreme Court--not directly, but in effect, during the oral arguments heard in the case of Abigail Noel Fisher v. the University of Texas.

Filed in 2008 after her application to UT was rejected, Fisher's case was originally considered by the Supreme Court in 2012-2013 but was sent back to the Fifth Circuit Court of Appeals. It is now before the Supreme Court for a second round of review.

Fisher's complaint challenges the university's consideration of race in its undergraduate admissions program. If she prevails on all of her claims, the last tepid vestiges of race-conscious affirmative action will end, not just at UT but at public colleges and universities throughout the land. Private institutions that receive federal funding subject to Title VI of the Civil Rights Act of 1964 would also be bound by a Fisher victory.

Such an outcome would deal a body blow to the central aims of the new student movement, as well as to the cause of civil rights generally. The Fisher case thus packs landmark potential, and warrants close examination.

Like every lawsuit, Fisher's tells a story--not only about abstract legal rules and regulations but about people. The most important cases, such as those that reach the Supreme Court, also tell stories about political power and competing social and moral values.

Fisher's saga as a litigant began in 2005, when a former stockbroker and failed Republican congressional candidate named Edward Blum (no relation to yours truly) founded the Project on Fair Representation (POFR) in Austin as a nonprofit legal defense fund under Section 501(c)(3) of the Internal Revenue Code.

As its website declares, POFR's mission is to end "racial and ethnic classifications and preferences in state and federal courts." Its work is financed by grants from the Koch brothers-backed Donors Trust group, a shadowy fundraising organization based in Arlington, Va., that Mother Jones magazine dubbed in 2013 the "dark-money ATM of the conservative movement." Other beneficiaries of Donors Trust grants, according to Mother Jones, have included the Heritage Foundation, Grover Norquist's Americans for Tax Reform, the NRA, the Cato Institute, the American Enterprise Institute and The Federalist Society.

One of Blum's first targets as POFR's director was his alma mater--the University of Texas and its flagship Austin campus, where he graduated in 1973.

Blum objected to the university's 2004 move to reinstate a race-conscious affirmative action program for undergraduate admissions. An earlier affirmative action program had been disbanded as a result of a federal circuit court ruling--Hopwood v. Texas--that held that the consideration of race in college admissions violated the equal protection rights of white applicants. But UT administrators were encouraged to act by a 2003 Supreme Court decision--Grutter v. Bollinger--that had approved the University of Michigan Law School's affirmative action program.

The Michigan system avoided the numerical quotas that the court had disapproved back in 1978 in Regents of the University of California v. Bakke. But it permitted admissions officers to take race, among myriad other criteria, into account in assessing applicants for the purpose of achieving a diverse student body.

The new Texas program, which has been slightly modified since its inception but continues to operate pending Supreme Court action, became known as the Ten Percent Plan (TTP). Under it, Texas high school students who graduate in the top 10 percent of their classes are guaranteed admission to the university. Applicants who fail to make the cut are evaluated under a second-tier "holistic" index that not only considers academic records and test scores but also a student's extracurricular activities, personal achievements, socio-economic background, family circumstances, native language and race, among other criteria.

Currently, UT is required to fill 75 percent of the spaces available in each entering freshman class with in-state 10-percent applicants. With another 10 percent of spaces reserved for out-of-state and international students, competition for the remaining in-state slots among non-10-percent residents is fierce.

Determined to derail the UT's use of race as violative of the 14th Amendment, Blum set out in 2005 to locate a good plaintiff to champion a lawsuit. Even though he isn't an attorney, he had by then become a savvy legal operative, having served, after his unsuccessful congressional bid, as a co-plaintiff in an apportionment case (Bush v. Vera) that made it all the way to the Supreme Court in 1996. In the Vera appeal, Blum and his fellow litigants convinced the high court to invalidate three congressional districts in Texas that had been created to give Hispanics and African-Americans voting majorities.

Following his triumph in Vera, Blum moved for a time to Washington, D.C., where he worked with the conservative Center for Equal Opportunity and became a visiting fellow at the American Enterprise Institute. He also solidified what would prove to be a long and fruitful relationship with conservative super lawyer Bert Rein, whose credits included a stint as deputy assistant secretary of state during the Nixon administration.

Back in Austin, the search for the right plaintiff to take on UT'*s holistic admissions program dragged on until March 2008, when Blum received a phone call from an old friend and business associate--accountant Richard Fisher--who reported that his 18-year-old daughter Abigail's heart had been broken after she had received a rejection notice from UT.

The two men discussed Abigail's situation. She had finished in the top 12 percent of her high school class at Sugar Land, Texas, 20 miles southwest of Houston, just missing the automatic cutoff. She had compiled a 3.59 GPA and scored a respectable 1180 on her SAT exam. In addition, she had played cello in the school orchestra, was active in math club and the soccer team, and had done volunteer work with Habitat for Humanity.

Blum concluded that Abigail and another young woman who similarly had been denied UT admission--Rachel Michalewicz--would make ideal plaintiffs. With Donors Trust bankrolling him, Blum retained attorney Rein to file a federal lawsuit.

The suit failed at the district court level and was unanimously denied by the Fifth Circuit Court of Appeals. Michalewicz withdrew from the litigation in 2011. But despite these setbacks, Blum and Rein appealed to the Supreme Court, which agreed to hear their petition.

Although the Grutter case was still controlling legal precedent, Blum and Rein knew that the Supreme Court, under the leadership of Chief Justice John Roberts, was no fan of affirmative action or anti-discrimination legislation generally. Indeed, one month after the court heard oral arguments on the Fisher case in October 2012, it decided to review another lawsuit orchestrated by Blum and Rein--Shelby County v. Holder--dealing with the Voting Rights Act of 1965. In June 2013, the court in that case gutted a key provision of the Voting Rights Act, with Roberts writing for a 5-4 majority that racial discrimination in elections was largely an evil of the past. During the oral arguments held in the case three months earlier, Justice Antonin Scalia famously railed against the entire Voting Rights Act as an unconstitutional "racial entitlement."

Blum's hopes for a comparable outcome in Fisher, however, were dashed when the court handed down a 7-1 opinion, authored by Justice Anthony Kennedy, that remanded the appeal back to the Fifth Circuit. Kennedy's opinion ordered the Fifth Circuit to reconsider UT's holistic policy under the exacting "strict scrutiny" standard that is used to test laws and governmental practices that discriminate on the basis of race. To pass the test, a challenged statute or policy must be deemed necessary to accomplish a compelling state interest, and there must be no less restrictive alternatives to the law or policy under consideration that could further such interest.

After the Fifth Circuit again upheld the Texas program in July 2014, finding that the university's consideration of race was needed to further the compelling interest in campus diversity, the Supreme Court again agreed to consider Fisher's suit.

Judging from the transcript of the oral arguments, the court is split 5-3 along party lines against affirmative action. With Justice Elena Kagan recusing herself because of her past involvement with the case as solicitor general during President Obama's first term, the Texas plan appears to be on life support.

Midway through the 90-minute proceeding, Scalia appeared, once more, to lose what remains of his withering judicial temperament, remarking: "There are those who contend that it does not benefit African-Americans to ... get them into the University of Texas where they do not do well, as opposed to having them go to a less advanced school, a ... slower-track school where they do well. One of the briefs pointed out that most of the black scientists in this country don't come from schools like the University of Texas. They come from lesser schools where they do not feel that they are being pushed too hard in classes that are too fast for them."

Avoiding such an overtly racist perspective, Chief Justice Roberts posed a pointed follow-up question about the value of diversity, asking rhetorically, "What unique perspective does a minority student bring to a physics class?"

Justice Samuel Alito raised concerns with the evidentiary record that had been compiled in the case, while Justice Clarence Thomas remained mum, as he invariably does during oral arguments. Both, however, are staunch critics of affirmative action. Thomas, the court's lone African-American, authored a separate concurring opinion in the court's 2013 Fisher decision, contending that a state's use of race in higher education should be categorically prohibited by the Equal Protection Clause of the 14th Amendment.

Given the court's divisions, the task of drafting the panel's majority opinion is likely to fall to Justice Kennedy, who will have at least five technical options:

First, and least probable, Kennedy and the court could dismiss Fisher's appeal as moot, since Fisher graduated from Louisiana State University in 2012 and has sustained no real lasting injury, financial or otherwise, from the denial of her UT application. According to her LinkedIn profile, Fisher is presently employed in Houston as a marketing business analyst.

Second, and also unlikely, Kennedy could uphold the Texas plan as constitutional and find that Fisher's application was fairly evaluated, and that she was rejected not because of her race but because her achievements just didn't measure up to UT's stringent standards. As Rutgers University Law professor Elsie Bodie noted in a recent New York Times op-ed, the same year Fisher was rejected, UT also denied admission to 168 black and Latino applicants whose academic and personal profiles resulted in scores as high or higher than Fisher's.

Hedging against the prospect of a loss, the dogged Blum has funded two other affirmative action cases--against Harvard and the University of North Carolina, respectively. Both complaints are pending at the federal district court level.

A third possible outcome is that Kennedy could remand the case a second time to the lower courts for an evidentiary hearing, following Alito's line of questioning. But such an order would please neither side in the case, and would only prolong the legal battle.

The remaining two possibilities are more ominous. The court could either strike down the Texas plan on narrow grounds that would not extend to other state systems, or it could finally yield to the Scalia-Thomas view that all forms of race-conscious affirmative action in higher education are unconstitutional. If it chooses the latter course, it's conceivable--though I wouldn't bet on it--that either Scalia or Thomas could be assigned to draft the majority opinion.

This is, plainly, the great fear of progressive educators, regardless of which justice gets to pen the decision. In 2014, in Schuette v. Coalition to Defend Affirmative Action, the court upheld a voter-adopted amendment to Michigan's constitution that prohibits state universities from considering race as part of their admissions process. To date, seven other states, including California, have implemented similar bans.

In the Fisher case, should the court rule that states that favor race-conscious affirmative action no longer may exercise that option, the effects will be profound, especially at the nation's most selective colleges and universities. Numerous studies have shown that bans on affirmative action lead to fewer minority admissions. Even race-neutral programs that take socio-economic disadvantages into account cannot take up the slack.

America remains a racist society. Participants in the Black Lives Matter and new student movements know this. Sadly, Chief Justice Roberts and his Republican brethren apparently don't.