Writing for the Supreme Court in the Texas affirmative action case, Justice Anthony Kennedy said that the school’s use of race in admissions “can make a difference [as] to whether an application is accepted or rejected.” The question for the Court, as Kennedy put it, was whether, “drawing all reasonable inferences in her favor, petitioner [one Abigail Fisher] has shown by a preponderance of the evidence that she was denied equal treatment a the time her application was rejected.”
The five-justice majority decided she had not made such a showing, but noted that the question it was resolving was “narrow.” Thus, it is possible to imagine another equal protection challenge to racial admissions at some other university or professional school that rises to the Court (years from now) and in which the Court assesses much differently the preponderance of evidence before it.
The Court first took up Fisher v. Texas in 2013, with Justice Kennedy writing then, too. In deciding not to decide, the seven-justice majority sent the case back to the lower courts for what appeared would be a more stringent review of Texas’s use of race in admissions. It seemed then that Fisher might prevail in Fisher II.
What’s concerning about Fisher II is its lack of concern about the dangers of using race even on behalf of ostensibly good ends. This is evident in the majority’s relaxed approach to “strict scrutiny,” under which a public university like the University of Texas must show that its use of race in making admissions decisions serves compelling interests and that its plan is narrowly tailored to achieve those ends.
In a dissent joined by Chief Justice John Roberts and Justice Clarence Thomas, Justice Samuel Alito reviewed the Court’s race cases in order to show why the use of race should be of deep concern, often quoting from Kennedy opinions.
For example, in Kennedy’s opinion for the Court in Miller v. Johnson (1995), he wrote: “At the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” And, from the same opinion: “Race-based assumptions embody stereotypes that treat individuals as the product of their race, evaluating their thoughts and efforts—their very worth as citizens—according to a criterion barred to the government by history and the constitution.”
Alito also quoted Kennedy opinions in making the point that “the higher education dynamic does not change” the standard of strict scrutiny. “In short,” wrote Alito, “in ‘all contexts,'” (here quoting Kennedy’s 1991 majority opinion in Edmonson v. Leesville Concrete Co.), racial classifications are permitted only if they can pass strict scrutiny.
Fisher II is another case illustrating the importance of the Court in this election season. For the Court to apply anything approaching strict scrutiny in a higher education race case, at least two conservative justices would have to be appointed. And, of course, for that to happen, a variety of things would have to happen, from the election of a Republican president to the retention of a Republican Senate, to the continued refusal of the Republican Senate to open a confirmation process for Merrick Garland, to another High Court vacancy that the president and the Senate could fill. The seat opening up would have to be Kennedy’s or one of the four liberals.
Correction: An earlier version of this story referred to Ms. Fisher as Alice. Her first name is Abigail.
