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Wednesday, October 10, 2012

Oral Argument in Fisher

Today the Supreme Court holds oral arguments in the Fisher case, involving the use of a race-conscious, although holistic, admissions plan at the University of Texas in addition to its state-mandated use of a top ten percent plan. With eight fairly closely divided Justices sitting in this case and an array of factual complications, it may be difficult, it seems to me, to get to five clear votes for a major statement of law on the issue. Obviously, though, if the Court speaks clearly it will indeed be a huge case, one that again likely turns on Justice Kennedy, to whom most of the briefs were addressed as clearly as if they'd all begun, "Dear Tony, and may it please the Court." In the meantime, closely placed sources are no doubt diving through Dumpsters to figure out what the swing Justice had for breakfast this morning, and con law teachers set to teach the Fourteenth Amendment next semester have a lot of "[tk]" marks in their draft syllabi.

Although I thought Judge Higginbotham's opinion for the Fifth Circuit below was excellent and should be upheld, I won't venture any predictions or strong views here. I will add a couple of things. It seems to me there are a host of oppositions involved in this case, not just one of "diversity" vs. "race-blindness." They include, in particular, a number of oppositions that might broadly be thought of as involving firm constitutional rules vs. a permissible range of institutional experimentation, or deference versus lack of deference. Much of this will play out doctrinally in the question how deference to the university, if any, should play out (if at all) in the narrow tailoring inquiry.

This is one of the central differences, to me, between former Justice O'Connor, who wrote the Court's opinion in Grutter, and Justice Alito. Justice O'Connor at least paid lip service in Grutter to the idea of the autonomy of higher educational institutions and the need for deference to those institutions, although I can't say she wasn't driven to use this language by other considerations. I see no signs that Justice Alito is of the same mind on these questions. Like the specially concurring judge in the court below who urged the reconsideration of Grutter, Justice Alito strikes me as someone who has a pretty firm and conventional (also, in my view, too rigid and outdated) view of the university and its purpose and is not inclined to defer to universities that see their mission differently. His screed against "political correctness" in the CLS case as something that is simply and alway contrary to the academic mission of the university is a strong example of that. To the extent the Court is inclined to extend any deference to the university in this case, I actually thought the record suggested that UT did a good and sincere job of considering what its mission was and how this should affect its admission policies when it came to reexamine them after Grutter; it was not just a crude afterthought to let it do what it wanted to do anyway. But the degree of deference the university will receive for this kind of thoughtful work may be affected by a sense among several Justices (one that is shared more widely elsewhere) that affirmative action in universities has become something of an industry or bureaucratized affair, and that some universities' defense of racial diversity has become routinized and dogmatic rather than a thoughtfully and intimately arrived at product of genuine academic consideration. Whether and how any of this will play out remains to be seen, obviously.

I'm not in a position to offer hypertext links, but I will add that Scotusblog has a number of great roundups on the case, and that the Vanderbilt Law Review has a good series of short pieces online discussing it as well. Finally, Professor Eboni Nelson has an op-ed in The State, which came out in the last day or two, arguing that the question whether to adopt race-conscious admissions policies should be squarely within the hands of the universities, not the courts. I am broadly sympathetic to that view, but with two caveats: 1) This discretion cuts both ways, of course, and I would perhaps have been happier if the op-ed had stated more emphatically that universities should be equally free to reject such policies as inconsistent with their mission(s); and 2) this institutionally oriented view leaves open the harder question of what do do when neither the courts nor the universities, but the people of the states themselves, intervene to set admissions policies for their universities, through the kinds of legislative or popular initiatives we saw in Michigan and California--and Texas, whose top ten percent plan will loom heavily in today's arguments.

Posted by Paul Horwitz on October 10, 2012 at 10:50 AM in Paul Horwitz | Permalink


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Had a little trouble finding the Nelson piece, so I thought I'd link it here:


Posted by: brad | Oct 10, 2012 2:44:47 PM

Ms. Nelson's position is, of course, both hypocritical and myopic. It's hypocritical because she no doubt doesn't believe that Ole Miss should have been allowed to reject black applicants despite judicial objections under some theory of academic autonomy and self-governance. It's also myopic because if SCOTUS ever announces that universities are exempt from judicial scrutiny of their admissions, employment etc. criteria, some universities will no doubt use the newly found freedom in the way Ms. Nelson would find highly objectionable.

Posted by: anon | Oct 11, 2012 2:44:39 AM

"If university officials, such as those at the University of Texas, choose in good faith to use affirmative action to ensure that such doors are open to students of all races, the court should continue its tradition and defer to university administrators’ educational judgment in sanctioning such use."

Prof. Nelson puts some caveats here that in part answers anon's comment. It has to be "in good faith" and for certain benign (debatable in application, yes) ends. Also, "defer" does not mean "exempt" -- it is like the presumption of constitutionality; it is rebuttable.

I understand the wariness though & think something like this warrants some judicial scrutiny. "Strict scrutiny" doesn't seem warranted. Some sort of honest intermediate review seems appropriate. It is what even Brennan claimed to follow in Bakke, as I recall.

Posted by: Joe | Oct 12, 2012 10:22:00 AM

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