Justice Anthony Kennedy finally found an affirmative action case that he liked.
Thursday, he upheld the race-based admissions plan at the University of Texas. It was a challenge brought by Abigail Fisher, a white woman, who said she was denied admission based on her race in violation of the equal protection clause.
It was a surprise ruling, as supporters of affirmative action thought the court and Kennedy were poised to curtail programs that took race into consideration as a factor. Instead, Kennedy wrote the majority opinion for the 4-3 ruling.
“Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission,” he wrote.
In the past, Kennedy acknowledged that schools had a legitimate interest in diversity but he expressed concern about the University of Texas’s plan.
“This is the first time in nearly three decades on the court that Justice Kennedy has voted to uphold a race-conscious affirmative action program against a constitutional challenge,” said Steve Vladeck, a CNN contributor and professor of law at American University Washington College of Law.
“Kennedy’s evolution matters because at least for the moment, his is the decisive vote on this and subsequent challenges that are already in the pipeline, on the constitutionality of race-based affirmative action programs,” Vladeck added.
Kennedy’s opinion was quickly seized upon by Justice Samuel Alito, who wrote the main dissent and read major portions from it from the bench.
“Something strange has happened since our prior decision in this case,” Alito said. Indeed, it was Kennedy who sent this case back down to the lower court in 2013. On a second look, that court upheld the program again.
At oral arguments, at one point Kennedy seemed to suggest that again, the lower court opinion hadn’t answered his questions and the case might need to go back down. “We’re just arguing the same case,” he said in December.
But after arguments, he went back to chambers and wrote an opinion that is narrow but delivers a victory to the university.
In his opinions, he addressed all of the concerns of Fisher, who argued she was denied admission based on her race in violation of the equal protection clause.
Texas is unusual in that the state already has a race-neutral program in place that allows the top 10% of students in high school to apply for the university of their choice. Lawyers for Fisher said the state could not layer a race-conscious program over a race-neutral program that already existed.
Kennedy noted that Texas’ plan is “sui generis” — or unique and different. But he said the school examined whether the race-neutral program was enough to create the desired diversity and found that “race-neutral policies and programs had not been successful.”
“Though a college must continually reassess its need for race-conscious review, here that assessment appears to have been done with care, and a reasonable determination was made that the university had not yet attained its goals.”
And he thought that the top 10% program alone would have some flaws. He said it would “exclude the star athlete or musicians whose grades suffered because of daily practices.”
“It would exclude a talented young biologist who struggled to maintain above-average grades in humanities class,” Kennedy added.
He refuted the notion that the use of race was not necessary because it only affected a small percentage of the school. Kennedy said that was a selling point for the university: “The fact that race consciousness played a role in only a small portion of admissions should be a hallmark,” he said of the narrow tailoring insisted upon by court precedent.
And while opponents of affirmative action point to other ways to achieve diversity, Kennedy thought they may not be sufficient.
He said “the university tried, and failed, to increase diversity through enhanced consideration of socioeconomic and other factors.”
And he even questioned the evidence on whether socioeconomic consideration would make a difference. Fisher, he said, would be “hard-pressed to find convincing support for the proposition that college admissions would be improved if they were a function of class rank alone.”
