by Joseph Fishkin, Professor, University of Texas at Austin School of Law and Co-Faculty Advisor to the ACS Student Chapter and Member of the ACS Board of Academic Advisors
*This post is part of the ACSblog symposium: Members of the ACS Board of Academic Advisors reflect on the 2015-2016 Supreme Court Term.
**This post originally appeared at Balkinization.
Fisher v. Texas II, decided last week in a startling opinion by Justice Kennedy for a 4-3 majority of a short-handed Court, will not end the controversy—or the litigation—over affirmative action in American higher education, which has been an enduring battleground in American constitutional politics for four decades. Throughout that time a succession of conservative near-majorities on the Supreme Court have attempted to end race-based affirmative action once and for all, and to make that rejection the centerpiece of a broader constitutional repudiation of a broad category of liberal race-based interventions. They have perennially come up one vote short. A succession of conservative swing Justices—Lewis Powell, Sandra Day O’Connor, and now as of this week, Anthony Kennedy—have made it their mission to make peace, on their own particular terms, between pro- and anti-affirmative-action constitutional arguments. Each time, that peace has involved tightening the constraints under which universities implement affirmative action programs. In past rounds, these conservative swing Justices have barred uses of race that were more mechanical and blunt, instead favoring a more holistic, individualized approach. (This approach was a sort of handmade gift from the Justices to college admissions officers across America, many of whom owe their very jobs to its labor-intensiveness.)
There were good reasons to expect this pattern to continue with Fisher v. Texas—to expect that Justice Kennedy, while once again stopping short of ending affirmative action, was poised to further tighten the constraints on universities. This time the constraint would not be about holistic review. Instead the plaintiffs in Fisher urged the Court to hold that no affirmative action program that considers the race of individual students is constitutional if there is a “workable” race-neutral alternative. Doctrinally, the plaintiffs more or less got this holding from Justice Kennedy’s opinion in 2013, when Fisher v. Texas reached the Court the first time (Fisher I). But this week Justice Kennedy wrote a different ending to the story. Instead of yet again tightening the constraints on universities—and thereby making their affirmative action programs ever more precisely defined by the contours of legal doctrine, and therefore ever more uniform—he did something unexpected. He loosened the constraints on universities instead, opening up new room for experimentation and for the use of a variety of admissions criteria. He opened up a space for pluralism.
Two different kinds of pluralism. The first is about the approaches different institutions use in admitting their students. The tighter the constitutional constraints imposed by a hostile Court, the more constitutional law tends to press every institution to proceed according to the same model. Justice Kennedy recognized in Fisher II that this is a problem for a democracy that is continuing to contest and revise its approaches to a complex issue that implicates competing, deeply held constitutional values. “In striking this sensitive balance,” he wrote, “public universities, like the States themselves, can serve as ‘laboratories for experimentation.’” In other words, we need a diversity of approaches to diversity.