{"id":226,"date":"2013-06-25T14:34:30","date_gmt":"2013-06-25T14:34:30","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/hjrej\/?p=226"},"modified":"2017-10-19T21:06:34","modified_gmt":"2017-10-19T21:06:34","slug":"the-legal-status-of-racial-power-a-retrospective-of-whiteness-as-property","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/blackletter\/the-legal-status-of-racial-power-a-retrospective-of-whiteness-as-property\/","title":{"rendered":"Commentary on “Fisher” and the Future of Affirmative Action"},"content":{"rendered":"

Introduction<\/em>
\n<\/strong>
\nNearly fifty years after eleven-year-old Linda Brown journeyed up the steps of the Supreme Court of the United States, seventeen-year-old Abigail Fisher took her place in front of the country\u2019s most esteemed judicial bench. Fisher, too, argued for equal educational opportunities. But the similarities stop there. While Brown argued against Kansas\u2019s segregated school system, Fisher found fault in being denied admission to the University of Texas at Austin. As a white Texas resident with a 3.59 GPA and an 1180 SAT score, she alleged that the University\u2019s admissions policy discriminated against her on the basis of race.<\/em><\/p>\n

The Fisher<\/em> case follows a long line of Supreme Court precedent. Most relevant are three cornerstones of affirmative action jurisprudence: Regents of the Univ. of Cal. v. Bakke<\/em>, which held unconstitutional the use of racial quota systems; Gratz v. Bollinger<\/em>, which held unconstitutional the automatic awarding of points to certain racial groups in an admissions program; and Grutter v. Bollinger<\/em>, which upheld the use of race as one of many \u201cplus factors\u201d in an admissions program that evaluated applicants on a variety of metrics.<\/p>\n

Unlike the affirmative action plans at issue in the Court\u2019s prior decisions, however, the University of Texas\u2019s admissions plan is complicated by a measure adopted by the Texas State Legislature. That measure, the Top Ten Percent Law, grants automatic admission to each student in the top 10% of his graduating high school class. Never before had the Supreme Court heard a case in which the legislature enacted a race-neutral statute aimed at increasing minority enrollment in state universities.<\/p>\n

First confronted with the challenge of evaluating Fisher\u2019s claim, the District Court granted summary judgment to the University. The United States Court of Appeals for the Fifth Circuit then affirmed. With seven judges dissenting, the Court of Appeals denied Fisher\u2019s request for rehearing en banc.<\/p>\n

Shortly after the Court decided to hear Fisher\u2019s case, advocates on both sides of the affirmative action debate began speculating on whether Fisher<\/em> would mark the end of the Grutter<\/em> era and signal the end of affirmative action in higher education. Many thought the decision would be dismissed for standing, insofar as Fisher ultimately graduated from another university. Still others believed that Justice Kagan\u2019s recusal from the case would result in a 5-3 split on conservative-liberal lines in favor of striking down Grutter<\/em>. But none could have predicted the opinion that Justice Kennedy would eventually deliver.<\/p>\n

Without Saying Anything, the Court Said It All<\/em><\/strong><\/p>\n

Writing for the majority, Justice Kennedy\u2019s opinion did nothing speculators believed it would. Kennedy neither upheld nor struck down the University\u2019s admissions plan and Grutter came out of the court battle at least partially in tact. Instead, Kennedy remanded the case for further review on the basis that the Fifth Circuit had failed to use the correct standard of review.<\/p>\n

Rather than applying strict scrutiny, the circuit court relied on bothGrutter<\/em> and Bakke<\/em> to give \u201cdue deference\u201d to the \u201cuniversity\u2019s educational judgment in developing diversity policies.\u201d More simply, the Fifth Circuit had given deference to the University not only in its determination that diversity is essential to its educational mission, but also in its determination that the means chosen to attain diversity were narrowly tailored to the diversity goal. To do so in the second instance and to rely on the University\u2019s good faith, according to Kennedy, was a mistake.<\/p>\n

Although Kennedy\u2019s opinion seems straightforward, a close reading of the Fifth Circuit\u2019s decision in conjunction with Grutter<\/em> reveals flaws in the reasoning on which it relies. At every step of the inquiry, the Fifth Circuit applied the very same strict scrutiny analysis as did the court in Grutter<\/em>. Furthermore, the circuit court relied most heavily on comparisons to the program upheld in that decision. Even though it afforded deference, the circuit court determined through strict scrutiny that the University had designed a plan that ensured \u201ceach applicant is evaluated as an individual and not in a way that makes an applicant\u2019s race or ethnicity the defining feature of his or her application.\u201d<\/p>\n

If Kennedy could find any fault in the Fifth Circuit\u2019s analysis, it is that the circuit court relied on Grutter\u2019s majority opinion as the basis for its decision. Kennedy\u2019s restatement of Grutter<\/em> reflects his own beliefs that the decision should have set a less deferential standard than it did. Dissenting in Grutter<\/em>, Kennedy wrote:<\/p>\n

\u201cThe Court confuses deference to a university\u2019s definition of its education objective with deference to the implementation of this goal. In the context of university admissions the objective of racial diversity can be accepted based on empirical data known to us, but deference is not to be given with respect to the methods by which it is pursued. . . . The majority today refuses to be faithful to the settled principle of strict review designed to reflect these concerns.\u201d<\/p><\/blockquote>\n

This statement clearly illustrates the difference between Grutter<\/em> as Kennedy understood it then and Grutter<\/em> as Kennedy would read it inFisher<\/em>. His own statements acknowledge that Grutter<\/em> allowed for deference at both phases of inquiry.Then Chief Justice Rehnquist\u2019s dissenting opinion in Grutter<\/em>, joined by Justices Scalia, Kennedy, and Thomas, reveals the same truth. He wrote, \u201cAlthough the Court recites the language of our strict scrutiny analysis, its application of that review is unprecedented in its deference.\u201d<\/p>\n

O\u2019Connor\u2019s majority opinion acknowledged criticism from the dissent. \u201cContrary to Justice Kennedy\u2019s assertions, we do not \u2018abando[n] strict scrutiny.\u2019 Rather . . . we adhere to Adarand\u2019s teaching that the very purpose of strict scrutiny is to take such \u2018relevant differences into account.\u2019\u201d The clear debate between the factions of the court show that Grutter\u2019s holding stood for \u201cgiving a degree of deference to a university\u2019s academic decision.\u201d<\/p>\n

Justice Ginsburg\u2019s fireball of a dissent pointed out the same logical flaws, arguing that \u201cthe Court of Appeals has already completed [the strict scrutiny] inquiry, [with] its judgment[] trained on this Court\u2019sBakke<\/em> and Grutter<\/em> pathmarkers.\u201d She further rejected the idea that the Top Ten Percent Law should have any effect on the Court\u2019s view of the University\u2019s admissions policy, because \u201conly an ostrich could regard the supposedly neutral alternatives as race unconscious.\u201d<\/p>\n

Ignoring precedent, Kennedy turned the Grutter<\/em> dissents into theFisher<\/em> majority, effectively rewriting Grutter<\/em>\u2019s strict scrutiny standard and silently overruling what could be called the most important decision to affirmative action proponents. Those that callFisher<\/em> a punt or view it as a mere remand to apply strict scrutiny have failed to appreciate the craft behind the opinion.<\/p>\n

Not only did Kennedy find some merit in the use of race-based admissions policies, but he also pulled in the reins on Grutter\u2019s deference to universities in favor of a more demanding strict scrutiny analysis in the educational context. He effectively rewroteGrutter<\/em> without writing anything. Therefore, it should come as no surprise that Kennedy was able to cull together a 7-1 majority comprised of two liberal proponents of affirmative action and two strong conservatives with the three conservative justices who dissented from Grutter<\/em>\u2019s deferential standard in the first instance.<\/p>\n

What <\/em>Fisher Might Mean for the Future<\/em><\/strong><\/p>\n

Refusing to reach the merits allowed the Court to reserve the question for a later date, leaving the status of affirmative action policies in a relative standstill. The public may not have to wait too long for answers, however. The Court will have its chance to address unresolved issues on affirmative action next term in Schuette v. Coalition to Defend Affirmative Action<\/em>. The Court may very well have had Schuette<\/em> in mind when it wrote the Fisher opinion; it granted cert. before Fisher\u2019s oral arguments had even begun.<\/p>\n

At issue in Schuette<\/em> is Prop 2, an amendment to the Michigan Constitution that bans affirmative action programs in the state. In light of Fisher<\/em>, Schuette<\/em> may indeed signal the end to affirmative action. Fisher<\/em> is in many ways a retreat from Grutter<\/em>\u2019s stronghold on affirmative action. And if Schuette<\/em>\u2019s ban is found constitutional, opponents of affirmative action will be able to legislate against it, avoiding the Grutter<\/em> framework altogether. As Michigan Attorney General Bill Schuette says in his petition for cert., such a decision would affirm a state\u2019s \u201cright to accept this Court\u2019s invitation inGrutter<\/em> to bring an end to all race-based preferences.\u201d<\/p>\n

Until Then, The Debate Continues<\/em><\/p>\n

Whether Fisher<\/em> is viewed as a win or a loss, affirmative action is as safe as it can be for now. Until Schuette<\/em>, advocates on both sides of the debate will just have to wait. In the meantime, we can all chew on Justice Thomas\u2019s outspoken concurrence. If you\u2019ve read his opinion, you know there\u2019s plenty to digest.<\/p>\n

\u2014
\nDavida McGhee, the author, is a second-year law student at Harvard Law School and Articles Editor for the Harvard Journal on Racial and Ethnic Justice<\/em>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Introduction Nearly fifty years after eleven-year-old Linda Brown journeyed up the steps of the Supreme Court of the United States, 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