Supremes Signal End to Affirmative Action?

Below, Curt Levey discusses the legal and political implications of the Supreme Court’s decision today to hear Fisher v. University of Texas, involving the constitutionality of racial preferences in university admissions. Levey, CFJ’s Executive Director, was one of the Center for Individual Rights attorneys who represented Barbara Grutter and Jennifer Gratz in the University of Michigan cases in which the Court upheld the diversity rationale for race-based admissions:

The Supreme Court’s decision to review the University of Texas’ race-based admissions system ensures that racial preferences will be on the front burner in the 2012 elections. As I explained in an October 3, 2011 op-ed in The Hill, the lineup of cases asking for Supreme Court review would “likely … focus[] Americans on several of the nation’s most emotional and divisive issues … at the perfect time to influence the 2012 election.” What was likely has now become certain. For the third time this term, the Court has introduced a controversial issue into the 2012 elections by agreeing to review a case that tees up the issue.

Unlike the other two cases, involving ObamaCare and Arizona’s immigration law, Fisher won’t be decided before the election. But it will be argued before the Justices so close to the election – a few weeks before or after – that it’s sure to be part of fall campaigns.

And that’s on top of the precariousness of the Supreme Court’s ideological balance, which alone is enough to make the Court a big issue in this election. As I further explained,

“The ages of several Supreme Court Justices and the closely divided makeup of the Court means that its ideological balance – and with it, the fate of gay marriage, abortion, illegal immigration and the like – could swing wildly in either direction after 2012.”

While today’s decision will inevitably impact the election, the direction of the impact is not completely clear. Americans overwhelmingly oppose racial preferences, as indicated both by the passage of anti-preference ballot initiatives in the blue states of Michigan, California and Washington and by numerous polls. For example, a 2009 Quinnipiac University Poll found that Americans by a two-to-one margin “oppose affirmative action programs that give preferences to [blacks or Hispanics] in hiring, promotions and college admissions” (61% opposed and 33% supported preferences for blacks; 29% supported preferences for Hispanics).

Given public opinion, shining a light on the affirmative action issue would seem to hurt Democrats, who are associated with promoting and defending racial preferences. However, Republicans have often been hesitant to capitalize on the issue and supporters of preferences have traditionally been more motivated by the issue.

Moreover, President Obama will be happy to remind minority voters that his re-election is the only thing that can turn around the Supreme Court’s increasing suspicion of racial preferences. Thus, Fisher could turn into a political plus for Democrats at the polls if Republican candidates remain silent on the issue.

Turning to the likely legal impact of Fisher, UT-Austin’s proven success in achieving racial diversity using non-race-based methods – most notably, the Top Ten Percent Plan – gives the five center-right Justices who are suspicious of preferences a perfect opportunity to, at very least, narrow their use without denying the importance of diversity. As I said in a 2004 law review article following the Grutter and Gratz decisions:

“[S]chools that have already achieved diversity through race-neutral means will have a very hard time defending a return to race-based policies. … [B]y UT-Austin President Larry Faulkner's own report, black and Hispanic enrollment recovered fully and minority academic performance increased at his flagship college after race-neutral methods were substituted for race-based admissions following Hopwood v. Texas. Faulkner may soon have to explain to a court why he decided to reintroduce race despite this success.”

Since Justice Alito replaced Justice O’Connor in 2006, it’s been even clearer that the University of Michigan decisions would be a high water mark for supporters of race-based admissions. It is hard to say whether the Court will use Fisher to overturn those decisions and completely eliminate the diversity rationale for affirmative action in admissions. That’s probably up to Justice Kennedy. But the Supreme Court did not take the Texas case to leave the legal state of race-based admissions untouched, and any change in the rules laid down by Grutter and Gratz will be a setback for those who favor explicit racial preferences over race-neutral means of achieving diversity.