Voices in Education

Justice Kennedy’s Role in Fisher and the Reality of Race
Those of us in the social science community who have been following the Fisher case know that the U.S. Supreme Court’s decision, like the 2003 decisions in Grutter v. Bollinger and Gratz v. Bollinger, could have a lasting impact on the practices and policies of postsecondary institutions across the country. As social scientists, we also believe that legal developments in this area should be informed by research findings that are relevant to the Court’s legal determinations. For these reasons, we came together, as organizations as well as individuals, to present social science research that spoke directly to the legal issues in Fisher. Overall, 73 amicus curiae (friend-of-the-court briefs) were filed in support of the University of Texas at Austin’s holistic admissions policy. I had the honor to serve as counsel of record for one of these, filed by 444 social science researchers from 172 institutions in 42 states across the country.

Of course, it is very difficult to find unanimity in research findings—and if we did, we might question the results—but the overwhelming number of research studies continue to support Grutter’s findings regarding 1) the educational benefits of diversity and 2) the need to continue to consider race in a limited manner to achieve these benefits. In the brief, we summarized evidence that reflected the consensus of the social science community to show why UT Austin is justified in considering race as one of many factors in admissions to attain the educational benefits of diversity. We summarize a body of work documenting that when institutions cannot consider race in admissions—as has been the case in states that have banned affirmative action via ballot measures or other policies—racial and ethnic diversity has declined across various educational sectors, not just at selective undergraduate institutions, but in the professional fields of law, business, and medicine, as well as other graduate disciplines. These declines have taken place despite myriad “race-neutral” efforts intended to achieve racial diversity and undermine the nation’s ability to meet workforce projections and remain internationally competitive.

After attending the oral argument on October 10th, I am more convinced that it is important these research findings inform the deliberations in the case. While it is always difficult to predict the outcome of a decision based on the oral argument, the Court appears to be divided into two blocks, with Justice Kennedy potentially casting the deciding vote. Only eight justices are considering the case; Justice Kagan recused herself, presumably because she worked on the case on behalf of the Obama administration when she served as solicitor general. On one side, three justices (Breyer, Ginsburg, and Sotomayor) may find UT Austin’s plan constitutional or dismiss the challenge on the grounds that Abigail Fisher does not have an injury that the Court can address. On the other side, four justices (Chief Justice Roberts and Justices Scalia, Thomas, and Alito) would limit, or as Justice Sotomayor phrased it, potentially “gut” the holding in Grutter.

The final decision then comes down to Justice Kennedy’s vote and whether he will agree with the four justices to overrule the Fifth Circuit decision (which upheld UT Austin’s holistic policy as constitutional under Grutter) or side with the other three justices, creating a tie that would leave the Fifth Circuit decision in place. During the argument, Justice Kennedy kept his cards close, making it difficult to predict his vote.

An exchange between Justice Alito and Justice Breyer during the oral argument provides some insight into the perspectives that distinguish the two sides of the Court. During the argument, Justice Alito asked the lawyer for the United States amicus curiae in support of UT Austin :

If you have two applicants who are absolutely the same in every respect: They both come from affluent backgrounds, well-educated parents. One falls within two of the groups that are given a preference, the other doesn’t. It’s a marginal case. It’s the last—the last position available in the class. Under the Texas plan, one gets in; one doesn’t get in.

A few minutes later, in direct response to Justice Alito’s question, Justice Breyer asked:

If there are ever two applicants where the GPA, the test—the grades, the SA1, SA2, leadership, activities, awards, work experience, community service, family’s economic status, school’s socioeconomic status, family’s responsibility, single-parent home, languages other than English spoken at home, and SAT score relative to school’s average, if you have a situation where those—all those things were absolutely identical, than the person would be admitted on the bounds of race.

Justice Breyer’s question attempts to highlight the unrealistic nature of Justice Alito’s hypothetical question—that two applicants could be entirely the same in all respects except for their race. The idea that this is even possible reflects a color-blind legal framework that is increasingly disconnected from social dynamics and reality in our society, particularly in regard to the implicit and subconscious ways in which race affects us. This is the perspective of the more conservative justices on the Court, who believe that the mere consideration of race is harmful, and that if we stop classifications on the basis of race, no matter what their purpose, we will end racial discrimination. Justice Breyer’s response, on the other hand, reminds us of how race continues to matter in questions of educational opportunity, and that to overcome the ways in which race affects us, we need to account for it. This perspective reflects the substance of what the Court held in Grutter.

Somewhere between these two perspectives, we have Justice Kennedy, who acknowledged in the K–12 voluntary desegregation opinion in Parents Involved in Community Schools v. Seattle School District No. 1 (2007) that race continues to matter in shaping individuals’ educational opportunity. Specifically, he stated: “The enduring hope is that race should not matter; the reality is that too often it does.” In an opinion that tracked many of the social science research findings summarized in another friend-of-the court brief filed by 553 social scientists in support of the school district’s policies, Justice Kennedy found that K–12 schools have a compelling interest in maintaining racially diverse schools and ensuring equal educational opportunity. In the same opinion, however, he severely restricted school districts’ ability to directly consider race in their policies to further these goals.

Given Justice Kennedy’s prior opinions (he also dissented in Grutter) and his likely deciding vote in Fisher, postsecondary institutions may find themselves in the same position as K–12 schools—told that they can further the educational benefits of diversity, but asked to do so through means that cannot explicitly consider race. In other words, it is possible that a decision in Fisher would uphold the compelling interest endorsed in Grutter, but tie the hands of postsecondary institutions so that they would need to turn to race-neutral means to achieve these interests. If Justice Kennedy considers the weight of the social science evidence submitted in support of UT Austin’s holistic admissions policy, he should see the need for institutions to continue to explicitly consider race in a limited fashion in their policies so that as a society we can finally reach a point where race stops mattering in shaping students’ educational opportunities.

About the Author: Liliana M. Garces is an assistant professor of higher education at the Graduate School of Education and Human Development at The George Washington University. She served as counsel-of-record in a brief filed by 444 American social science researchers as amici curiae in support of the University of Texas at Austin.