The Supreme Court has agreed to hear an affirmative action case that challenges the affirmative action program administered by the University of Texas. Many commentators think that this case signals the end of affirmative action. Afterall, why would the Court take this case if not to overturn its 2003 decision in Grutter v. Bollinger? For those despairing about this case, I want to make the case for some cautious optimism. I also want to present a more nuanced analysis than the analysis that I'm seeing on some of the blogs and in the media.
First, it takes four Justices on the Court to grant cert, but it will take five Justices to overturn the judgment of the court below, a panel of the 5th Circuit Court of Appeals, which upheld the constitutionality of the Texas affirmative action program. (By the way, the author of the 5th Circuit opinion is the conservative judge Patrick Higginbotham, who wrote a very strong and careful opinion upholding the Texas plan.) I don't know which Justices voted to take the case, but there are easily four Justices who would vote to strike down the program and maybe even reverse the Court's decision in Grutter. Chief Justice Roberts, Justices Scalia, Thomas and Alito are all good bets to both strike down the program and find that the constitution does not allow raceconscious decisionmaking by state actors. So this leaves Justice Kennedy.
Second, Justice Kennedy's views on race is more nuanced than the commentators are giving him credit for. Unlike his fellow compatriots on the right, especially Justices Scalia and Thomas, and maybe even the Chief, Justice Kennedy does believe that the government can take race into account as long as the government does so in a manner that is consistent with the Constitution. Even in his dissent in Grutter, Justice Kennedy cited Justice Powell's Bakke opinion approvingly for the "principle that a university admissions program may take account of race as one, nonpredominant factor in a system designed to consider each applicant as an individual." He closed his opinion in Grutter and by "reiterat[ing] [his] approval to giving appropriate consideration to race in this one context." More pointedly, in the Parents Involved case, Justice Kennedy stated explicitly, "Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue." This means that as a matter of principle, Justice Kennedy agrees with the diversity rationale. This is why commentators who fail to distinguish between Justice Kennedy and the other conservative Justices are making a mistake.
Third, unlike the other Justices on the right, Justice Kennedy has consistently expressed solicitude for the circumstances in which folks of color find themselves. In Grutter, he cited approvingly, "the Court's important holding allowing racial minorities to have their special circumstances considered in order to improve their educational opportunities." Justice Kennedy expanded upon this theme in his concurrence in Parents Involved. In that case, he made the argument that even though we aspire to live in a colorblind world, the reality is that race continues to matter. Along with Justice O'Connor's opinion in Grutter, Justice Kennedy's concurrence in Parents Involved is the most sophisticated attempt by a conservative Justice to to reconcile conservative ideology with a view of the constitution that takes into account the equality concerns of Americans of color.
Fourth, and this is where the rubber meets the road, Justice Kennedy has a narrow view of the types of governmental programs that can use race consistent with the Constitution. In he disapproved of the University of Michigan Law School's affirmative action program in Grutter because the thought that race played too big of a role in the admissions process. He thought the Michigan Law School's program was the equivalent of a quota. He disapproved of the programs in the Parents Involved case because neither Seattle nor Louisville, according to Justice Kennedy, fully explained the manner in which they took race into account He did not think they used race as one consideration among many other considerations. He wrote that "Race may be one component of . . . diversity, but other demographic factors, plus special talents and needs, should also be considered." What he objected to is "Assigning to each student a personal designation according to a crude system of individual racial classification." He encouraged government actors to use "race-neutral means first and "if necessary" they can use "a more nuanced, individual evaluation of school needs and students characteristics that might include race as a component."
Fifth, this two-tiered approach, first use race-neutral means and then use a more limited race conscious approach that makes a narrow use of race, is precisely the Texas program. Texas first employed its Ten Percent Plan, pursuant to which 10% of high school graduates are automatically admitted to the University of Texas. The University then conducted a study and determined that the Ten Percent Plan did not yield sufficient diversity. According to the 5th Circuit's opinion, "After more than a year of study . . ., [the University of Texas] adopted a policy to include race as one of many factors considered in admissions." That policy authorized the University to take race into account with respect to the pool of applicants that were not admitted to UT under the Ten Percent Plan (it is that policy that the plaintiffs challenge in the case.) The 5th Circuit also found that UT does not engage in a racial quota, does not keep an ongoing tally of admits by race, does not try to mirror the state's racial demographics, and applicants of every race, including white students, can make the case that their race will contribute to the diversity of the school.
It is not inconceivable that Justice Kennedy would vote to affirm the Texas plan. I would be surprised if Justice Kennedy reversed course and concluded that racial diversity is not a compelling state interest. I would not be surprised if he decided that the Texas plan however idd not pass constitutional muster. This would be consistent with what he did with the Michigan case and the Seattle and Louisville cases. But I also think that the Texas plan coms closest to a narrowly-tailored program that Justice Kennedy described in his prior opinions. Consequently, this plan is tailor made for Justice Kennedy and he might just do the right thing in this case.