[Justice Kagan recused herself, having participated in the case below as solicitor general.]
I previewed the case in February 2012 when the Court decided to hear it, and you should review that diary to understand the facts of UT's policy. In short, UT's admissions process beyond its Top Ten Percent policy included a Personal Achievement Index which in turn included a "special circumstances" element which could reflect the socioeconomic status of the applicant and his or her high school, the applicant's family status and family responsibilities, the applicant's standardized test score compared to the average of her high school, and the applicant's race.
According to the Court, the Fifth Circuit erred by treating the UT policy as having been adopted in good faith, and was overly deferential to the university's assertions regarding how the policy worked in practice and how necessary it was. While achieving racial diversity remains a constitutionally permissible goal, Justice Kennedy explained, a more searching review of such policies is required:
The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference. Grutter made clear that it is for the courts, not for university administrators, to ensure that “[t]he means chosen to accomplish the [government’s] asserted purpose must be specifically and narrowly framed to accomplish that purpose.” True, a court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes. But, as the Court said in Grutter, it remains at all times the University’s obligation to demonstrate, and the Judiciary’s obligation to determine, that admissions processes “ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.”Much more, including Justice Thomas going lone wolf (yet again), after the gnocchi:
Narrow tailoring also requires that the reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity. This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications. Although “[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative,” strict scrutiny does require a court to examine with care, and not defer to, a university’s “serious, good faith consideration of workable race-neutral alternatives.” Consideration by the university is of course necessary, but it is not sufficient to satisfy strict scrutiny: The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If “ ‘a nonracial approach . . . could promote the substantial interest about as well and at tolerable administrative expense,’ ” then the university may not consider race. A plaintiff, of course, bears the burden of placing the validity of a university’s adoption of an affirmative action plan in issue. But strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.
In conclusion, Justice Kennedy wrote, a "strict scrutiny" standard of review means what it says:
Strict scrutiny must not be “‘strict in theory, but fatal in fact.’” But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact. In order for judicial review to be meaningful, a university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that “encompasses a . . . broa[d] array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”As Justice Scalia notes in a brief concurrence, Abigail Fisher did not ask the Court to overrule its precedent from Grutter that a compelling interest in the educational benefits of diversity can justify racial preferences in university admissions, so the issue was not ripe for review here. And in her opinion of the Court in Grutter, Justice O'Connor herself noted that "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." That's still 15 years from now.
Justice Ginsburg was the sole dissenter; she would have affirmed the UT policy under the Court's precedent:
Texas’ percentage plan was adopted with racially segregated neighborhoods and schools front and center stage. It is race consciousness, not blindness to race, that drives such plans. As for holistic review, if universities cannot explicitly include race as a factor, many may “resort to camouflage” to “maintain their minority enrollment.”Which leaves Justice Thomas' remarkable concurrence, and as he has done before in race-related cases, he goes his own way. In short, he sees no difference between the pro-diversity arguments of today and the pro-segregation arguments of the 1950s, and as he wrote separately in Grutter, would prefer that America finally listen to what he sees as Frederick Douglass' call to leave African Americans alone, and stop trying to help. Back then, he wrote:
I have several times explained why government actors, including state universities, need not be blind to the lingering effects of “an overtly discriminatory past,” the legacy of “centuries of law-sanctioned inequality.” Among constitutionally permissible options, I remain convinced, “those that candidly disclose their consideration of race [are] preferable to those that conceal it.”
Accordingly, I would not return this case for a second look. As the thorough opinions below show, the University’s admissions policy flexibly considers race only as a “factor of a factor of a factor of a factor” in the calculus; followed a yearlong review through which the University reached the reasonable, good-faith judgment that supposedly race-neutral initiatives were insufficient to achieve, in appropriate measure, the educational benefits of student-body diversity; and is subject to periodic review to ensure that the consideration of race remains necessary and proper to achieve the Uni- versity’s educational objectives. Justice Powell’s opinion in Bakke and the Court’s decision in Grutter require no further determinations.
Frederick Douglass, speaking to a group of abolitionists almost 140 years ago, delivered a message lost on today’s majority:And today, he continued:“[I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us… . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! … And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! … [Y]our interference is doing him positive injury.” What the Black Man Wants: An Address Delivered in Boston, Massachusetts, on 26 January 1865, reprinted in 4 The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan eds. 1991) (emphasis in original).Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators...
In our desegregation cases, we rejected arguments that are virtually identical to those advanced by the University today. The University asserts, for instance, that the diversity obtained through its discriminatory admissions program prepares its students to become leaders in a diverse society. The segregationists likewise defended segregation on the ground that it provided more leadership opportunities for blacks. See, e.g., Brief for Respondents in Sweatt 96 (“[A] very large group of Northern Negroes [comes] South to attend separate colleges, suggesting that the Negro does not secure as well-rounded a college life at a mixed college, and that the separate college offers him positive advantages; that there is a more normal social life for the Negro in a separate college; that there is a greater opportunity for full participation and for the development of leadership; that the Negro is inwardly more ‘secure’ at a college of his own people”); Brief for Appellees in Davis 25–26 (“The Negro child gets an opportunity to participate in segregated schools that I have never seen accorded to him in non-segregated schools. He is important, he holds offices, he is accepted by his fellows, he is on athletic teams, he has a full place there”. This argument was unavailing. It is irrelevant under the Fourteenth Amendment whether segregated or mixed schools produce better leaders. Indeed, no court today would accept the suggestion that segregation is permissible because historically black colleges produced Booker T. Washington, Thurgood Marshall, Martin Luther King, Jr., and other prominent leaders. Likewise, the University’s racial discrimination cannot be justified on the ground that it will produce better leaders.And then he doubles down:
The University also asserts that student body diversity improves interracial relations. In this argument, too, the University repeats arguments once marshaled in support of segregation. See, e.g., Brief for Appellees in Davis 17 (“Virginia has established segregation in certain fields as a part of her public policy to prevent violence and reduce resentment. The result, in the view of an overwhelming Virginia majority, has been to improve the relationship between the different races”); id., at 25 (“If segregation be stricken down, the general welfare will be definitely harmed . . . there would be more friction developed”; Brief for Respondents in Sweatt 93 (“Texas has had no serious breaches of the peace in recent years in connection with its schools. The separation of the races has kept the conflicts at a minimum”); id., at 97–98 (“The legislative acts are based not only on the belief that it is the best way to provide education for both races, and the knowledge that separate schools are necessary to keep public support for the public schools, but upon the necessity to maintain the public peace, harmony, and welfare”); Brief for Appellees in Briggs 32 (“The southern Negro, by and large, does not want an end to segregation in itself any more than does the southern white man. The Negro in the South knows that discriminations, and worse, can and would multiply in such event” (internal quotation marks omitted)). We flatly rejected this line of arguments in McLaurin v. Oklahoma State Regents for Higher Ed., 339 U. S. 637 (1950), where we held that segregation would be unconstitutional even if white students never tolerated blacks. Id., at 641 (“It may be argued that appellant will be in no better position when these restrictions are removed, for he may still be set apart by his fellow students. This we think irrelevant. There is a vast difference—a Constitutional difference—between restrictions imposed by the state which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state presents no such bar”). It is, thus, entirely irrelevant whether the University’s racial discrimination increases or decreases tolerance.
The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.You get the idea. It's worth reading in full, though none of his fellow justices signed onto this opinion.
Slaveholders argued that slavery was a “positive good” that civilized blacks and elevated them in every dimension of life. See, e.g., Calhoun, Speech in the U. S. Senate, 1837, in P. Finkelman, Defending Slavery 54, 58–59 (2003) (“Never before has the black race of Central Africa, from the dawn of history to the present day, attained a condition so civilized and so improved, not only physically, but morally and intellectually. . . . [T]he relation now existing in the slaveholding States between the two [races], is, instead of an evil, a good—a positive good”); Harper, Memoir on Slavery, in The Ideology of Slavery 78, 115–116 (D. Faust ed. 1981) (“Slavery, as it is said in an eloquent article published in a Southern periodical work . . . ‘has done more to elevate a degraded race in the scale of humanity; to tame the savage; to civilize the barbarous; to soften the ferocious; to enlighten the ignorant, and to spread the blessings of [C]hristianity among the heathen, than all the missionaries that philanthropy and religion have ever sent forth’ ”); Hammond, The Mudsill Speech, 1858, in Defending Slavery, supra, at 80, 87 (“They are elevated from the condition in which God first created them, by being made our slaves”).
A century later, segregationists similarly asserted that segregation was not only benign, but good for black students....
What the Court's decision reflects, yet again, is the chief justice's consistent desire to have the Court speak with one voice on contentious issues whenever possible, as a way of maintaining its legitimacy and providing clarity to lower courts. But affirmative action will be back to 1 First St, NE, rest assured.
The Court will be back tomorrow at 10 AM EDT with more opinions. I'll have a write-up of some of today's other decisions later today.