Fisher v University of Texas and the Conservative Case for Affirmative Action

Fisher v University of Texas at Austin had a long, strange trip at the Supreme Court. Fisher was the Court’s latest encounter with affirmative action in higher education. In 2012, the Court granted certiorari in the case to review a decision by the Fifth Circuit that upheld the university’s affirmative action plan. Aspects of the case arguably made it inappropriate for the Court’s review, so the decision to intervene suggested that the Justices were eager to issue a significant ruling on affirmative action. The Court then spent a long time deliberating: it heard argument in October 2012, then did not issue its decision until almost the last day of the Term, in June 2013. But that decision, surprisingly, was narrow and nearly unanimous. The Court merely corrected the standard that the court of appeals had used and remanded the case for further proceedings. On remand, the Fifth Circuit again held that the university’s plan was constitutional.The Supreme Court again granted certiorari. The second grant, one might have thought, was a signal that the Court was sure to restrict, in a significant way, state universities’ ability to engage in affirmative action; why else would it have taken the case again? But the Court did nothing of the kind. Its decision was, again, narrow; in fact, it was explicitly limited to the University of Texas’s unusual situation. And it affirmed the Fifth Circuit’s decision upholding the constitutionality of the university’s plan. After two plenary hearings and deliberations spread over two Terms, the Court essentially left the status quo intact, raising the question why the Court had not just denied review in the first place. When it was all over, Justice Ginsburg commented, in an interview with the New York Times, “I don’t expect we’re going to see another affirmative action case, at least in education.” What happened in Fisher? One possibility is that the Court finally recognized a tension that has been present since its first decision about an affirmative action program, forty years ago, in Regents of University of California v Bakke. The Court has held that affirmative action is subject to “strict scrutiny”—meaning that the Court will insist that the university, or other government entity, demonstrate that its affirmative action measures are no more extensive than necessary to advance a compelling interest. The Court has said that achieving educational diversity is a compelling interest. But educational diversity is an objective that resists the kind of clear definition that strict scrutiny requires. If the end cannot be clearly defined, then a court cannot decide, as strict scrutiny requires, whether the means are closely adapted to achieving it