Kennedy's Shift Saves Race-Conscious University Admissions

College admissions that consider applicants' racial background still do not violate the Equal Protection Clause, the Supreme Court ruled this morning. The ruling, in Fisher v. University of Texas at Austin, ends a long-running dispute about the University of Texas's admissions criteria, which considers "intangible characteristics" of the incoming student body, including diversity.

In a surprise move, Justice Kennedy wrote the majority for the Court, which split 4-3, with Justice Kagan recusing herself. In the past, Justice Kennedy has supported affirmative action admission policies in theory, but not in practice. After contentious oral arguments, many speculated that he would cast the deciding vote to end university affirmative action programs altogether, not to save them.

Affirmative Action Survives Strict Scrutiny Once Again

Texas's admissions policy survived assessment under the "three controlling principles" announced in Fisher I, the Court's ruling when the case came before it in 2013. First, to withstand strict scrutiny, a program must "demonstrate with clarity" that racial classification is necessary. That hurdle was overcome by the University of Texas's thorough examination of the need for diversity, setting forth concrete goals such as the destruction of stereotypes, preparing students for a diverse workforce and society, and promoting "cross-racial understanding."

Secondly, the university's program was supported by a reasonable explanation, to which some judicial deference is afforded. A year-long study found that race-neutral policies had been unsuccessful at accomplishing the university's diversity goal, providing a "reasoned, principled explanation" for the admissions policy.

Finally, that program was sufficiently narrowly tailored. The Court rejected Fisher's claim that racial considerations were not narrowly tailored because they had a small impact on achieving the school's goals. "It is not a failure of narrow tailoring for the impact of racial consideration to be minor," the Court wrote. Nor must the university pursue every possible race-neutral alternative, particularly when the workability of those options is questionable.

The Switch in Time

The ruling marks a major win for proponents of race-conscious admissions and greater diversity in higher education. And it is certainly a blow to those who expected Fisher to mark the end of college affirmative action programs.

The ruling also marks a major departure for Justice Kennedy. During his tenure on the Supreme Court, Kennedy has often written that affirmative action programs in education can survive challenges under the Equal Protection Clause. But he has never actually voted to support such a program, until today.

In 2003's Grutter v. Bollinger, for example, Kennedy dissented from the Court's ruling upholding race-conscious admissions at the University of Michigan Law School, arguing that the focus on a "critical mass" of diverse students violated the "individual assessment" of applicants required by the Constitution. In somewhat similar decision, the split 4-1-4 ruling in Parents Involved in Community Schools v. Seattle School District 1, Kennedy stood alone, finding that the school desegregation programs were unconstitutional here, but permissible in theory.

In the University of Texas, Justice Kennedy finally found a race-conscious educational program he can support. That program is somewhat idiosyncratic. Most of the University of Texas's students are admitted through the state's Top Ten Percent Law, which guarantees UT admission when a student graduates at the top of her class. Only a quarter of UT students are admitted outside that program, in a process that requires individual evaluations where race is a "factor of a factor of a factor."

But those holistic evaluations are not too dissimilar to programs used throughout the country, meaning that Kennedy's shift on affirmative action could go a long way towards insulating them from future constitutional challenges.

Related Resources:

• Supreme Court Upholds University of Texas Affirmative Action Admissions (The Washington Post)
• Fisher and Friends: Affirmative Action on SCOTUS Agenda (FindLaw's U.S. Supreme Court Blog)
• Sotomayor Once Saved College Affirmative Action. Can She Again? (FindLaw's U.S. Surpeme Court Blog)
• Will the Supreme Court Care About Campus Protests? (FindLaw's U.S. Supreme Court Blog)