Fisher v. University of Texas: No Funeral for Affirmative Action

Fisher v. University of Texas: No Funeral for Affirmative Action

Art Coleman, Managing Partner and Co-Founder

Art Coleman, Managing Partner and Co-Founder

This post was written by Art Coleman, former Deputy Assistant Secretary of Civil Rights, U.S. Department of Education

In the higher education world, all eyes are again on the U.S. Supreme Court, where a second appeal involving the challenge to the University of Texas’ race-conscious admission policy will be heard sometime in the 2015-16 term.  I was somewhat shocked by the press response to the Court’s grant of review a second time this summer: a number of headlines predicted the death of affirmative action.   And, I’ve just returned from a higher education access conference at which the funeral procession appeared to have already begun.  Respected thought leaders and practitioners of varying political stripes could be heard echoing the very same themes:  affirmative action is on its way out.  Why else, they ask, would the Supreme Court want to hear a case a second time? (To be clear, the decision to hear the case a second time is definitely not the norm.)

So, I’ve been around the block a few times, and know all too well the dangers of gazing into a crystal ball to forecast Court action.  So, let me just say this:  There is nothing in current precedent—or in the posture of this case as we know it—that would invite (let alone affirm) such dramatic Court action.

Why?  There are three reasons.  (Note to readers:  With lawyers, there are always three reasons!)

  1. Fisher is not asking the Court to end affirmative action –not even with a wink and a nod. While there appeared to be a bit of winking and nodding going on in the first round of the case, the merits brief this time is narrow and tightly focused—arguing for a lower court reversal on very specific University of Texas facts under existing legal standards.
  1. In the past decade, in the two cases involving challenges to race-conscious practices in education, the Court in each case unanimously recognized that universities could pursue race-conscious practices to achieve their diversity goals (subject, of course, to very rigorous standards of review) . All eight Justices hearing Fisher I in 2013 and the full Court hearing a K-12 challenge in 2007 made this point, albeit in various ways. (Oh, and by the way, the principles on which those decisions were based go back decades—with foundations in longstanding Supreme Court jurisprudence and U.S. Department of Education regulations.)
  1. On the one point on which we do all appear to agree about Fisher’s round two appeal–it’s all about Justice Kennedy—the story remains much the same. This undisputed “swing Justice” authored Fisher I ; he wrote a controlling opinion in the 2007 k-12 case; and even in his strong dissent (pg 387) from the landmark University of Michigan majority ruling in 2003 that upheld a challenged race-conscious admission policy, he recognized that the educational benefits of diversity reflected a “compelling interest” that could on different facts support race-conscious practices, consistent with prevailing affirmative action caselaw.

To be fair, I do acknowledge the maxim that the Constitution is what five Justices say it is—and, yes, they can—and do!—surprise us all.  But such action in this case would reflect a major reversal of precedent and undermine a settled landscape of institutional practice.   I, for one, have faith that they won’t take that drastic, unnecessary step that would in effect undo a regime that has guided sound institutional practice for decades.

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