As this issue of Trusteeship goes to press, lawyers are preparing for argument in Fisher v. University of Texas, the most important higher education case on the Supreme Court’s docket this term. When the court issues its decision in spring 2016, it will in all likelihood be its third significant affirmative-action ruling in a dozen years. Higher education faces the prospect of legal disruption and practical confusion in what is now a settled area at the very heart of its mission. The stakes in Fisher are enormous.
Until 2003, the jurisprudence of affirmative action in admissions was a train wreck. Much of the damage traces back to the equivocal 1978 Supreme Court decision in Board of Regents v. Bakke, a case challenging a medical school admissions program that reserved 16 seats in a class of 100 for minority candidates. In a jumbled decision, four justices decided that quota programs violated the constitutional rights of non-minority applicants while four decided that the program was lawful. That left it up to the ninth justice, Lewis Powell, to cast the deciding vote.
His opinion—not endorsed in its totality by any other member of the court—elucidated a Solomon-like middle ground prohibiting quotas but allowing “narrowly tailored” affirmative action programs so long as they furthered the goal of fostering classroom diversity. The decision confused most lawyers and created uncertainty over what attributes a “narrowly tailored” program was required to possess.
In 2003, to the almost universal relief of the higher education community, a clear majority of the justices ruled in Grutter v. Bollinger that race-conscious affirmative-action programs were lawful as long as they did not create separate processes or admissions standards based on applicants’ race. Ten years later, when Fisher reached the Supreme Court for the first time, the court applied principles from Grutter to find (again) that the use of race as a criterion in making admissions decisions satisfied constitutional requirements if it furthered diversity and operated in a “narrowly tailored” fashion.
Quoting from Justice Powell’s opinion in Bakke, the court held that an admissions program is narrowly tailored if it is “flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.”
Typically, when the Supreme Court decides a case, it sends it back to the lower court whence it came for further proceedings consistent with the decision. That’s what happened in Fisher. Last year, a lower federal court reaffirmed its ruling in favor of the University of Texas: “We are persuaded,” the court concluded, “that to deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter.”
So there we are. A clearly stated majority ruling from the Supreme Court in 2003. Reaffirmation of jurisprudential principles in 2013. A straightforward application of controlling Supreme Court precedent when the case was returned to a federal appellate court in 2014. End of story, right?
Wrong. On June 29, 2015, the last day before the Supreme Court’s summer break, the court announced that it would again review the Texas admissions plan. Commentators used words like “baffling” and “ominous” to describe the court’s highly unusual decision to hear Fisher again. Many observed that four justices ruled against the Texas plan the first time around and a fifth—Justice Anthony Kennedy—has never voted to uphold an affirmative action program that relies in part on race as a decisional criterion.
Keep your eye on Fisher. Should next year’s Supreme Court decision change the rules that have lent stability to college admissions over the last dozen years, higher education’s commitment to diversity could face its most serious challenge since the days of segregated schools in the 1950s. Governing boards will face the difficult task of expressing that commitment forcefully at the same moment that—heaven help us—institutions may be deprived of the single most powerful diversity tool in their arsenal. Boards will need fortitude, imagination, and wisdom. So will their counsel.