The Clock May Be Ticking on Affirmative Action

In 2oo3, a sharply divided Supreme Court upheld the University of Michigan Law School’s affirmative action program.  Justice Sandra Day O’Connor, at the time the high Court’s swing vote, wrote that she hoped “25 years from now, the use of racial preferences will no longer be necessary.”  However, the current Supreme Court may very well cut that timeline in approximately half.

Recently, a federal court of appeals upheld, for the second time, the University of Texas’s undergraduate affirmative action program.  The court of appeals had previously been scolded by the Supreme Court for not making a more searching inquiry to determine if the university could have utilized an admissions process that took race into account less prominently (or not at all).  The Supreme Court’s decision sending the case back to the court of appeals also tightened the noose on affirmative action in the higher education context by instructing lower courts that the government — here, the public university — should be given little to no deference justifying its use of race in admissions.

On the second go-around, the court of appeals attempted to placate the Court.  In a lengthy opinion, the court of appeals scoured the record and determined that Texas’s use of race was “necessary” and there was a “want of workable alternatives that would not require even greater use of race.”  Moreover, the court found that the plaintiff, Abigail Fisher, would not have been admitted to Texas in any event, race-conscious program or not.  Fisher has since graduated from Louisiana State University.

However, the court’s three-judge panel was split 2-1, with the most conservative judge dissenting (two of three judges were appointed by Republicans).  Judge Garza criticized the majority for not recognizing the Supreme Court’s “new” approach to affirmative action in higher education and stated the he would have found Texas’s program unconstitutional.

Both opinions seemed designed to appeal to Justice Anthony Kennedy.  Critically, Justice Kennedy dissented in the Michigan Law School case and it was he who wrote the Supreme Court’s opinion the first time the Texas case came before the high Court.

For her part, Fisher has stated that she is committed to her lawsuit and will likely ask the Supreme Court to review the court of appeal’s latest decision.  And therein lies the rub.  There are four justices — Chief Justice John Roberts, Justice Antonin Scalia, Justice Clarence Thomas and Justice Samuel Alito — likely to vote to strike down Texas’s affirmative action program.  If Justice Kennedy is not pleased with the court of appeal’s second effort there is a likelihood that affirmative action in higher education will be ruled unconstitutional. The Roberts Court has a history of warning government actors before it rules against them.  For example, the Court’s majority, before striking down a portion of the Voting Rights Act, had explicitly warned Congress in a previous ruling that it found certain of the Act’s provisions problematic.  Here, Justice Kennedy has already issued his warning regarding affirmative action, it may very well be that he follows through on it.

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