Did the Supreme Court Just Admit Affirmative Action is about Racial Justice?

Richard Thompson Ford

The majority opinion in Fisher v. Texas, which upheld the affirmative action policy of the University of Texas, marks a turning point in the long controversy surrounding race-conscious admissions policies and perhaps an important shift in the orientation of the Supreme Court as well. Justice Kennedy, long the pivotal swing vote on the Court and a skeptic of affirmative action, voted to uphold UT’s policy.

It may seem at first that this marks an ideological shift to the left. But Fisher is more likely a long overdue recognition by the Court of the limits its own competence. In a move that infuriated the minority, the Court elected to leave calculations about the educational benefits of diversity to educators.

A happy side effect, whether intentional or not, is that the Court may have taken a step toward improving the candor and quality of debates about racial injustice—discussions it previously played a part in undermining.

The Court gave up on micromanaging admissions

The controversy in Fisher was itself the result of an accretion of earlier judicial interventions, each one adding a fresh layer of complexity. In response to earlier legal decisions, which for a short time prohibited affirmative action in Texas, UT began admitting the top 10 percent of high school graduates from each school district across the state, as an indirect means of achieving racial diversity. Because many local school districts in Texas are racially segregated, the policy was guaranteed to yield a significant number of black and Hispanic students.

When the Supreme Court held that universities nationwide could use affirmative action if necessary to promote diversity, UT began considering race in a more targeted way for a small subset of applicants.

Abigail Fisher, who had been rejected by the university, insisted that because UT had achieved a measure of racial diversity with the race-neutral 10 percent plan alone, the university couldn’t meet the high legal standard—”strict scrutiny”—that would justify racially classifying students in order to increase still further the number of minority students. UT countered that the 10 percent plan was inadequate because it did not yield a “critical mass” of minority students and did not yield minority students from sufficiently diverse socioeconomic backgrounds.

Basically, the question in Fisher boiled down to: How much diversity is enough? The Court’s answer was that only UT itself could make that call. “Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission,” Justice Kennedy wrote.

This is a big change in the Court’s approach to affirmative action in higher education. From the late 1970s until this case, the Supreme Court placed new restrictions on affirmative action after each new challenge, basically micromanaging college admissions from the bench. In 1978’s Regents of the University of California v. Bakke, the Court held—in a regrettable move—that affirmative action was the equivalent of Jim Crow race discrimination. According to the Court, remedies that specifically helped black and Hispanic students (at the expense of other students) were not legally and morally different from rules that excluded minority-race students.

To survive the Court’s scrutiny, affirmative action had to be “narrowly tailored” to serve a “compelling” interest. Under the compelling interest standard, the Court effectively rejected affirmative action designed to remedy societal discrimination as too vaguely justified.

With the “diversity” rationale, the Court painted itself into a corner

As a result, the only permissible goal of affirmative action became “diversity,” which the Court agreed brought substantial educational benefits (including teaching students to live and work with people unlike themselves). Under the requirement of narrow tailoring, the Court effectively limited consideration of race to one factor in a “holistic” evaluation of individual applicants, alongside qualities like musical talent or socioeconomic background. In short, it barred any systematic form of race-conscious admissions.

What’s more, in the 2013 Fisher case, of which this year’s case is the final chapter, the Court insisted that universities use even this weakened version of affirmative action only when race-neutral alternatives proved unable to achieve diversity.

The Court changed the way we talk about race—for the worse

These restrictions did much more than just limit affirmative action. By limiting the permissible rationales for affirmative action, they have reshaped the conversation surrounding racial justice. For instance, in response to Bakke, many selective universities shifted from straightforward numerical approaches to admission to the more opaque “holistic review” of individual applicants.

While there’s no doubt that selective schools care about diversity, it’s far from clear that colleges stopped thinking of themselves as engaged in remedial racial justice too. The practice — and the required vocabulary for public discussion—simply became weaker and more indirect.

Because affirmative action is one of the nation’s few proactive responses to racial inequity, the way we think and talk about it affects the way we think about racial justice generally. And because universities are dedicated to sustained and rigorous analysis of vexing social issues, the conversation there is especially influential. Practically speaking, the Court’s affirmative action jurisprudence has warped the national conversation about race, downplaying the importance of race-based disadvantage and exaggerating the importance of cultural difference.

Ironically, this may have been as bad for conservatives as for liberals: Even as it has muted a conversation about our nation’s history of racial injustice, it has also amplified the more divisive forms of multiculturalism.

Though Kennedy did not say so explicitly, Fisher makes little sense unless you read the opinion as acknowledging that affirmative action is not the moral equivalent of Jim Crow. (As Justice Alito suggested hotly in the dissent, the Court would surely not grant deference to universities to discriminate against black and Latino students.) This tacit concession offers hope for a more honest account of American race relations from both the courts and colleges and universities.

Despite skepticism about affirmative action, Justice Kennedy voted to give deference to universities.

The shift to the pragmatic goes beyond affirmative action

As with the affirmative action case, one might see an ideological shift to the left in Kennedy’s support for a pro-choice holding in this term’s abortion case — Whole Woman’s Health v. Hellerstedt. But the real shift in Kennedy’s thinking in both cases appears to be a new pragmatism and sensitivity to institutional dynamics.

In Hellerstedt, the practical details of health care delivery led the Court to be suspicious of Texas’s new restrictions on abortion. Though framed as regulations designed to protect the health of women seeking abortions, their practical effect was to dramatically impede access to abortions, with little if any real improvement in health or safety.

Unlike in Fisher, the Court did not defer to the judgment of the state in Hellerstedt, but there is a similarity in that in both cases the Court left decisions about how to administer a complex service to the entities responsible for actually providing it (universities and hospitals).

The limits of the law

At their best, the courts can defuse volatile social controversies, bringing the cool logic of the law to questions that might otherwise provoke confusion, heated passions, and intractable conflict. Unfortunately, with respect to affirmative action, the courts have done the opposite: Judicial intervention has distorted public policy and public debate, stoked the fires of discontent, and added layers of obfuscation to what are ultimately fairly simple—if controversial—issues. One can only hope that Fisher marks a retreat from this ill-fated judicial adventure.

Richard Thompson Ford, George E. Osborne Professor of Law, is the author of several books, including Rights Gone Wrong: How Law Corrupts the Struggle for Equality and The Race Card: How Bluffing About Bias Makes Race Relations Worse.

This op-ed was first published by Vox on July 5, 2016.