Contributor, The Volokh Conspiracy

Today the Supreme Court issued its much-awaited decision in Fisher v. University of Texas, a challenge to the University of Texas’s use of race-conscious admissions criteria. When the case was first argued, many speculated that the days of relying upon race in university admissions were numbered. Justice Anthony Kennedy was seen as the swing vote, and he had consistently voted to limit (although not always to eliminate) the consideration of race in educational policies. The predictions were wrong, however, and race-conscious admissions policies have survived. Today’s decision reaffirms the ability of universities to rely upon race as one criterion among many when making admissions decisions, albeit within some limits.

Kennedy delivered the majority opinion in Fisher v. Texas, joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. (Justice Elena Kagan was recused.) In his opinion, Kennedy concluded that the petitioner had failed to demonstrate that the use of race in admissions by the university was so great or disproportionate as to create an equal protection violation. Noting that Texas’s admissions policies were, in some respects, sui generis (because of the automatic admission of students in the top 10 percent of each public high school), Kennedy concluded that reliance upon race as a part of the larger admissions process was constitutional, while also stressing (in ways reminiscent of Justice Sandra Day O’Connor’s opinion concerning the use of race by the University of Michigan law school in Grutter), that the university has a continuing obligation to periodically reassess the extent to which consideration of race is necessary in order to achieve the school’s pedagogical and other goals.

Kennedy’s opinion concludes:

A university is in large part defined by those intangible “qualities which are incapable of objective measurement but which make for greatness.” Sweatt v. Painter, 339 U. S. 629, 634 (1950). 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. But still, it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.

In striking this sensitive balance, public universities, like the States themselves, can serve as “laboratories for experimentation.” United States v. Lopez, 514 U. S. 549, 581 (1995) (KENNEDY, J., concurring); see also New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting). The University of Texas at Austin has a special opportunity to learn and to teach. The University now has at its disposal valuable data about the manner in which different approaches to admissions may foster diversity or instead dilute it. The University must continue to use this data to scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.

The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admis­sions policies. The judgment of the Court of Appeals is affirmed.

Justice Clarence Thomas wrote a solo dissent, and Justice Samuel Alito wrote a lengthy dissent, joined by Chief Justice John Roberts and Thomas.

One note on the lineup: The 4-3 split of the decision suggests that the court would have been split 4-4 after oral argument (because it’s pretty clear Justice Antonin Scalia would have sided with Fisher). Were that the case, however, one would normally expect the court to have affirmed the judgment below without opinion. That didn’t happen, suggesting there may have been some maneuvering between Scalia’s death and today. One possibility is that the court initially split 4-1-3, with Kennedy voting to reverse the lower court in some respects, with the remaining justices lined up in more stark positions (i.e. the conservatives opposed to all use of race and the liberals calling for lesser scrutiny of diversity-oriented admissions policies). After Scalia died, however, it may be that the liberal justices were willing to give up on opinions defending race-based affirmative action more broadly in order to secure a clear majority. This is one way to explain the voting anomaly, as well as the lack of an opinion by Ginsburg or Sotomayor defending race-conscious admissions. This is all speculative, however, and we won’t know for sure unless and until relevant papers from one of the justices’ chambers are released decades from now.