Guest Post by Vinay Harpalani, Associate Professor of Law, Savannah Law School

In its October 2015 term, the U.S. Supreme Court will once again consider the constitutionality of race-conscious admissions policies. On June 29, the Court surprised many observers when it granted Abigail Fisher’s petition for a writ of certiorari in Fisher v. Texas (II)—two years after its initial ruling in the case. In Fisher (I), the Court remanded the case to the Fifth Circuit Court of Appeals for proper application of strict scrutiny, holding that there must be “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.” On remand, the Fifth Circuit upheld the University of Texas at Austin (UT) race-conscious admissions policy, as both it and the U.S. District Court for the Western District of Texas had done in Fisher (I).

The basic issues in Fisher (II) remain the same as in the original case. Can UT use race as part of its supplemental holistic admissions policy, in addition to the Top Ten Percent plan it employs to admit the vast majority (approximately 80 percent) of its incoming class? Abigail Fisher contends that the Top Ten Percent Law itself admits a “critical mass” of underrepresented minority students, so UT does not need to use a race-conscious policy for students admitted through the supplemental holistic plan. UT, on the other hand, contends that it has not achieved sufficient diversity with the Top Ten Percent plan alone.

Although the issues are the same, Fisher (II) will differ from its predecessor. The Court will delve deeper into the merits than it did in Fisher (I). Also, in the initial Fisher litigation, UT’s primary argument focused on quantitative diversity: numbers of minority students in particular types of classes. UT contended that it had not attained a “critical mass” because a large percentage of its seminar courses—where more classroom discussion actually takes place—had few or no Black, Latina/o, or Asian American students. Conversely, Fisher (II) will focus more on “qualitative diversity”: how UT’s race-conscious policy contributes to diversity within racial groups and the educational benefits of such within-group diversity. This is an issue I have analyzed extensively.

UT did briefly raise its within-group diversity argument in Fisher (I) at the Supreme Court (not in the lower courts), but the Fisher (I) opinion did not consider the issue. On remand, however, diversity within racial groups became a much more central part of UT’s argument. UT focused on how Black and Latina/o students admitted under its supplemental holistic policy were qualitatively different from the Black and Latina/o students admitted under the Top Ten Percent plan. It argued that the non-Top Ten Percent students have had different experiences because they attended predominantly White schools. Moreover, in accordance with the diversity goals articulated in Grutter v. Bollinger, UT argued that these students can help break down racial stereotypes.

Abigail Fisher countered that UT has not established that its supplement holistic policy actually contributes to diversity within racial groups, or that such within-group diversity has educational benefits unattainable via the students admitted under the Top Ten Percent plan. Fisher further argued that UT’s assumptions about diversity within racial groups are themselves rooted in racial stereotypes and violate the spirit of the Equal Protection Clause. She also questioned whether UT could raise the within-group diversity argument, after not doing so in the lower courts in the first case, and she argued that regardless, within-group diversity is not part of Grutter’s compelling interest.

The Supreme Court has heard some of these arguments before, but this time it should actually rule on them. In accordance with its Grutter and Fisher (I) precedents, the Court should defer to UT on defining its diversity-related educational goals, such as the benefits of diversity within racial groups. However, to pass the ever-tightening narrow tailoring test, UT will probably need to show that its supplemental holistic policy does in fact contribute to diversity within racial groups, and that such within-group diversity is related to the educational goals and benefits that it has articulated. This will be a difficult challenge, as UT has not yet produced evidence to demonstrate these points in a specific and tangible manner.

The Court will also likely revisit the issue of “critical mass”—a dilemma which took center stage in the Fisher (I) oral argument, but which the Court did not address in its Fisher (I) opinion. Both parties continue to treat critical mass as part of the narrow tailoring test rather than as a component of the compelling interest. Previously, I have argued that this is a strategic mistake for UT. As it stands, the burden will be on UT to articulate a tangible definition of critical mass—a difficult undertaking because of the complex type of racial diversity it seeks, and because it must distinguish a critical mass from a numerical quota. UT will also likely have to show that its race-conscious policy contributes to attaining this critical mass, and it may have to define a tangible end point for its use of race. UT ran into trouble with all of these issues in the Fisher (I) oral argument, and it must fare better for any chance of prevailing in Fisher (II).

Justice Elena Kagan will once again be recused from Fisher (II), as she participated in Fisher (I) in the lower courts when she was the U.S. Solicitor General. Justice Anthony Kennedy’s vote likely will be outcome determinative, as is often the case on this Supreme Court. Although he has not voted to uphold race-conscious admissions policies in the past, Justice Kennedy has stated that along with diversity, “avoiding racial isolation” is a compelling state interest. This creates a conundrum for him, because the Top Ten Percent plan only yields racial diversity for UT because of racial isolation and segregation in Texas public schools.

Nevertheless, I predict that the Supreme Court will strike down UT’s race-conscious admissions policy on narrow tailoring grounds. But the ruling itself will probably have limited precedential value. UT’s Top Ten Percent plan is unique among states that use race-conscious admissions policies, and a narrow ruling striking down the use of race would not be applicable in other states. The Court is not likely to overturn Grutter: it has now thrice upheld diversity as a compelling interest, and Justice Kennedy himself affirmed the diversity interest in both his Grutter dissent and his Fisher (I) majority opinion. The Court could alter Grutter’s narrow tailoring test in some substantive manner. However, it could also rule for Fisher on grounds that UT has not passed Grutter’s own narrow tailoring test—by failing to illustrate the link between its race-conscious policy and the educational benefits of within-group diversity (or any other educational benefits), and by failing to define critical mass and its end point for using race in admissions.

With five Justices who are hostile, at varying levels, to race-conscious admissions, the Supreme Court will continue to tighten its chokehold on Grutter—in Fisher (II) and beyond. Ironically, the Court may use its own creation—the confusing and convoluted doctrine on race-conscious university admissions—to force universities into a race-neutral corner without actually overruling Grutter. Universities should begin right now to assess how they can defend their race-conscious admissions policies in the future. Even if it has a limited immediate impact, Fisher (II) will very likely provide fuel to more lawsuits, some of which have already been filed. Universities will have to articulate their diversity-related goals more specifically and illustrate tangibly how those goals relate to race-conscious policies. Elsewhere, I have written about how they can begin this process—in an effort to keep race-conscious policies alive until the composition of the Court changes and it becomes more amenable to racial diversity and justice.