Monday, June 24, 2013

Fisher v. University of Texas -- a very brief reaction while on vacation

I’m on vacation and have only skimmed the Fisher opinions, but it doesn’t look like much has changed as a result of this case.

The Court said the 5th Circuit failed to really apply strict scrutiny by essentially deferring to the University regarding whether (and how much) race-consciousness was necessary and scrutinizing the program only for “good faith,” which I guess means that the asserted diversity objective is in fact genuine (as opposed to some insidious motive, e.g., racism or attempting to gain a racial advantage).

The 5th Cir. can be forgiven for its deferential posture, I think, given that the language of O’Connor’s opinion for the Court in Grutter suggested that a certain amount of deference to the judgment of professional educators was appropriate.  Nonetheless, it’s understandable and not at all surprising that the current Court majority would think some more-exacting scrutiny of means is required.

But of course the Court still hasn’t given us any sort of formula for what kind of exacting scrutiny is needed.  Kennedy’s opinion for the Court says we need to ask whether the means chosen are “‘necessary’ … to achieve the educational benefits of diversity.”  But there’s not much discussion of what this might entail.  Which, again, is not surprising, partly because an in-depth explanation would require a good explanation of precisely what the “educational benefits of diversity” really are (which, even if Kennedy were willing to embark on such an explanation, probably would have scared off some of the more-conservative Justices); partly because the Court continues to reject “quotas” or other quantitative measures of diversity; and (largely for this latter reason) partly because the narrow-tailoring assessment inevitably will be extremely fact-sensitive.

So the application of strict scrutiny in these cases will remain a matter of “I know it when I see it”:  If you can convince five Justices on the Court (or, in most cases, two judges on a Court of Appeals) that a program is not truly “necessary … to achieve the educational benefits of diversity,” whatever they are and whatever that means, then you can win your challenge.  Nothing really new here.

This case also reaffirms that Kennedy is on the fence about of affirmative action – he’s not against it in theory, but he hasn’t found an actual example of it that he likes.  We knew this from his opinions in Grutter and Gratz and has subsequent opinion in Parents Involved, and his opinion here tells us that nothing’s changed.

And this case reaffirms that Scalia and Thomas will vote against any affirmative-action program, although Scalia was uncharacteristically coy about stating that in his brief concurrence.

The main thing this case adds to our understanding of the issue is that Roberts is not categorically opposed to affirmative action – all indications are his stance is closer to Kennedy’s than to Scalia’s and Thomas’s (otherwise presumably he would have joined one of their opinions or written a separate concurrence).  So that’s modest good news for affirmative-action supporters.

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