Affirmative Action Survives Fisher (Sort of), but What About Schuette ?

Justice Kennedy’s majority opinion in Fisher v. University of Texas at Austin on the constitutionality of the University of Texas at Austin’s (the University) affirmative action admissions program appears to have something for everyone. Six other justices who had staked out starkly contrasting positions on affirmative action in the past joined the opinion. The parties to the case each claimed they were pleased with the outcome, and both supporters and opponents of affirmative action hailed the decision a victory for their respective sides of the debate.In most respects, the Fisher decision dodged the key questions about affirmative action in college admissions: Does the Equal Protection Clause of the U.S. Constitution totally ban consideration of race in college admissions? If not, what types of limited consideration of race are permissible? The Supreme Court refused to decide whether Grutter v. Bollinger, which narrowly upheld a very limited use of race in college admissions, is still "good law" after the Court’s change in makeup and subsequent decision in Parents Involved in Community Schools v. Seattle School District No. 1. Rather than creating a consensus on affirmative action, which might be inferred from the 7-1 vote, Justice Kennedy’s very narrow opinion left open for another day the resolution of the controversial issues. Given the 4-4 split among justices other than Justice Kennedy, it seems inevitable that there will be no definitive pronouncement on affirmative action until there are new appointments to the Court.In the meantime, Justice Kennedy was able to use Fisher to advance his particular middle-of-the-road approach to become the governing doctrine in affirmative action cases. In Fisher, he acknowledged (as he did in Grutter) that colleges have a compelling interest in a diverse student body, but he significantly narrowed the scope of legitimate consideration of race to attain that goal (which had been the basis for his dissent in Grutter). Without explicitly overruling or disagreeing with the Court’s opinion in Grutter, he effectively turned his dissent in Grutter into a majority opinion in Fisher.This Essay will explore what was, and what was not, resolved in the Fisher decision, and will look ahead to the next affirmative action case on the Court’s docket — Schuette v. Coalition to Defend Affirmative Action. In Schuette, the Court will review the constitutionality of an amendment to the Michigan Constitution that prohibits any consideration of race in public education. That amendment achieves, for the State of Michigan, a total ban on affirmative action.If the Supreme Court upholds the constitutionality of the Michigan amendment, it would achieve what opponents of affirmative action might consider a "second best" option. That is, the four "conservative" justices were unable in Fisher, and in earlier Supreme Court decisions, to have the Court create a national ban on affirmative action (as part of U.S. constitutional law). Nevertheless, if the Court upholds the Michigan amendment, it would allow for state-by-state bans on affirmative action that would not be subject to Supreme Court review.