Did the Court Punt? Or Not?

WASHINGTON -- In the initial flurry of e-mails and Twitter comments about the Supreme Court's ruling Monday on affirmative action, the metaphor of choice was football. The Supreme Court had punted, the comments said, by sending the case back to a federal appeals court for further review.

And in some ways, the Supreme Court didn't appear to be shifting the law, referencing its past rulings as defining its course of action in Fisher v. University of Texas at Austin, in which Abigail Fisher, a white woman rejected for admission by the university, said that her rights had been violated by UT-Austin's consideration of race and ethnicity in admissions decisions. And it's certainly true that the decision didn't have the sort of finality many had expected.

But a number of other legal experts -- some of them strong supporters of affirmative action -- are reading Monday's decision as going well beyond a punt. They argue that the conditions being set by the Supreme Court for colleges to successfully defend the consideration of race will be hard for the University of Texas and many institutions to meet. What the court decided to do, these experts argue, was let lower courts restrict affirmative action, rather than having a decisive ruling from Washington do so.

One thing legal experts agreed on: The Fisher case and the debates over affirmative action in higher education are far from over. And many expect to see the Texas case return to the Supreme Court.

At issue in the case was the right of the University of Texas to consider race and ethnicity in admissions when the university had already identified another means by which to create diverse student bodies. That other way is a state law in Texas granting admission to any public college or university in the state to a student who graduates in the top 10 percent (since brought down a bit, but the theory still applies) of his or her high school class.

Because Texas has many high schools that are almost entirely black or entirely Latino, this law means that the University of Texas at Austin is sure to admit black and Latino applicants. Fisher's challenge was to the consideration of race for the slots not given out through percent plan admissions. The university has maintained that it wouldn't have enough diversity (particularly in some fields of study) if it relied only on the percent admissions plan. Fisher and her backers disagree.

Monday's ruling didn't say who was right. Rather, it said that the U.S. Court of Appeals for the Fifth Circuit had erred in not applying "strict scrutiny" (a very high standard) when it reviewed the university's defense of its admissions practices and found that Fisher did not have a case. The Supreme Court's decision -- 7-1, with Justice Anthony Kennedy the author -- ordered the appeals court to reconsider the case, this time applying strict scrutiny.

Justice Kennedy's decision seemingly had something to offer to defenders and critics of affirmative action alike. He cited the Bakke and Grutter decisions (from 1978 and 2003, respectively), both rulings that upheld the right of colleges to consider race and ethnicity in admissions for the educational purpose of creating a diverse student body. Some in higher education had feared (and some critics of affirmative action had hoped) that the Supreme Court would use the Fisher case as an opportunity to reverse Grutter and effectively bar colleges from considering race.

Only a concurring opinion from Justice Clarence Thomas argued for such a move, although another concurring opinion from Justice Antonin Scalia noted that the plaintiffs in Fisher hadn't asked for Grutter to be overturned, suggesting that he too would be receptive to such a request.

The decision not to take on Grutter was at the heart of numerous press releases from pro-affirmative action groups praising Monday's ruling.

But while Justice Kennedy quoted Grutter, he can't be considered its strongest defender, given that he dissented when that case was before the Supreme Court, arguing that the majority decision wasn't going far enough in making sure that colleges had exhausted race-neutral options to promote diversity.

In his opinion on Fisher, Kennedy stressed that issue. He said that while colleges and universities deserve some deference in determining whether diversity is an important educational value, they deserve no deference on the question of whether their affirmative action policies are "narrowly tailored" (as required by other Supreme Court decisions).

Wrote Kennedy: "The university must prove that the means chosen by the university to attain diversity are narrowly tailored to that goal. On this point, the university receives no deference. Grutter made clear that it is for the courts, not for university administrators, to ensure that '[t]he means chosen to accomplish the [government’s] asserted purpose must be specifically and narrowly framed to accomplish that purpose.' True, a court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes. But, as the Court said in Grutter, it remains at all times the university’s obligation to demonstrate, and the Judiciary’s obligation to determine, that admissions processes '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.' "

He added: "Narrow tailoring also requires that the reviewing court verify that it is 'necessary' for a university to use race to achieve the educational benefits of diversity. This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications. Although “[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative,' strict scrutiny does require a court to examine with care, and not defer to, a university’s 'serious, good faith consideration of workable race-neutral alternatives.' "

The University of Texas pledged that it would make a case that could meet the higher standards of strict scrutiny, but not everyone is sure that will be possible -- particularly with the Supreme Court having just scolded the appeals court for not being rigorous enough on the university's arguments.

The Lawyers Weigh In

Of course it is not a surprise that, in the wake of Monday's ruling, Fisher and her lawyers predicted that they would win at the appeals court level. But many who support affirmative action are finding that to be a live possibility after Monday's ruling. Barbara A. Lee, a proponent of affirmative action who is dean of the School of Management and Labor Relations at Rutgers University, said that "it is going to be difficult, but not impossible for the university to meet the very high standard that the court set out."

Lee, co-author of The Law of Higher Education (Wiley), said Texas or other colleges challenged in this way "are going to have to show that they tried everything that is race-neutral."

Robert M. O'Neil, professor of law emeritus at the University of Virginia and former president of that institution, is also a supporter of affirmative action. He said that there could be years of further litigation, and said that the Fifth Circuit might opt to send the case back to a district court for a full trial, leaving open the possibility of an entire additional round of appeals.

O'Neil said that the University of Texas lawyers have cause to celebrate "for the next 18 hours," because the court didn't reverse Grutter. But he said that the language in Kennedy's decision means that Texas can't just make the same arguments again. As to what argument would work, O'Neil said, "I"m not sure I know what it is. I'm sure the folks in Austin will be scratching their heads on that." O'Neil said that there is a "very clear message" in the decision that at least four and maybe five justices are not happy with how colleges have justified affirmative action.

Richard Sander, a law professor at the University of California at Los Angeles who is an outspoken critic of affirmative action, said he too saw a shift from Grutter to Fisher. On Scotusblog, Sander wrote that previous decisions "essentially winked to universities that racial admissions preferences would be tolerated if they were not overtly aggressive and inflexible." In contrast, he said that Kennedy's decision in Fisher was "a rebuke" to the Grutter decision in requiring more specific, detailed explanations for why the consideration of race is necessary.

Michael Olivas, an expert on higher education law (and a defender of affirmative action), e-mailed immediately after the decision: "Affirmative action lives on by a thread." Olivas is director of the Institute for Higher Education Law and Governance at the University of Houston and author of Suing Alma Mater: Higher Education and the Courts (Johns Hopkins University Press).

In an interview Olivas said that the decision could have been much worse -- and that responding to it may require a change in approach by the University of Texas. He said that universities need to talk more frankly about the way demographics are changing in their states -- and how affirmative action plans are in fact far behind those changes. White students aren't the victims of admissions policies, he said. "The Abigail Fishers are predominant at colleges and universities," and state universities need to start showing "that whites are a declining share of the state population."

This will show how "the demographics are out of whack" in higher education, showing the need to consider race and ethnicity in admissions.

Colleges and universities shouldn't back away from the use of race, Olivas said, but they should step up their reviews of demographics, and their studies of the reasons students from different groups do and don't apply. "You should always be looking at your admissions plans," he said.

Most legal observers said Monday that they were surprised by what had transpired. One who wasn't was Scott Greytak, a lawyer with the firm Campinha Bacote. Greytak wrote in West's Education Law Reporter last year that one possible outcome of the case would be for the Supreme Court to clarify its views on strict scrutiny and to send it back to the appeals court. While Greytak wasn't convinced then that that was the most likely option, he said it would make sense, given Justice Kennedy's skepticism about race-based decision-making.

Greytak, who said he is a strong supporter of affirmative action, said in an interview Monday that the language about not deferring to colleges, about "good faith" not being enough, about race-based solutions being "necessary," and so forth "create a standard that did not exist in Grutter." And Greytak added that "it's going to be almost impossible to meet that standard if you have a race-neutral program" such as the percent plan in Texas.

All the media talk about punting has missed the point, Greytak said. "The Supreme Court may have passed the buck down to the Fifth Circuit," but the justices have changed the rules on consideration of race in admissions, he said.

"This is a very quiet death sentence for affirmative action that is race-conscious."

Kevin Brown, the Richard S. Melvin Professor of Law at Indiana University at Bloomington, did not go as far as Greytak, but he too sees a shift in the legal landscape. He said that he reads the language in the Kennedy decision to say "you can use race if you can justify it, but don't take race too much into account." Compared to before this decision, he said, race may need to "count for less" than it did before.

Brown has written articles defending affirmative action, but also criticizing some colleges for, in his opinion, having admissions policies more likely help foreign-born black students or economically well-off black students than those who are truly disadvantaged. He said that colleges may respond to this decision by scaling back their use of race -- say, accepting a 100-150 point gap in SAT scores between racial or ethnic groups, but not a 300-point gap that some colleges would accept today. He said he worries that this will result in the most advantaged black students benefiting from affirmative action.

While the court appeared to affirm Grutter, Brown said, the real message "is that narrow tailoring has to be taken more seriously, that you really have to demonstrate that race-neutral alternatives may not work, and that's going to be hard for Texas and others."