Last week, the Supreme Court teed up yet another big constitutional showdown over the constitutionality of affirmative action programs by agreeing to review the decision of the Fifth Circuit in Fisher v. University of Texas, which held that the Equal Protection Clause of the Fourteenth Amendment permits the University of Texas at Austin to consider race as one of a multitude of factors in selecting a diverse student body.  Fisher is largely an attempt to seek a do-over of the Court’s 2003 opinion in Grutter v. Bollinger, which upheld a similar policy adopted by the University of Michigan Law School by a 5-4 vote over the dissents of Justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas, and then-Chief Justice William Rehnquist.

Fisher has been billed as a case about racial preferences, but the facts show how poorly that description fits the bill.  The UT Austin policy permits the school to consider race as a factor in selecting a diverse student body, but only as a part of an individualized assessment that takes into account all facets of the applicant.  The policy emerged after many years of effort by the Texas legislature and the University to increase classroom diversity, break down stereotypes, and increase pathways to leadership for all persons at the state’s flagship public university.  UT Austin adopted this review process in 2004, after undertaking a study of campus life and finding significant racial isolation and racial tensions on campus.   The University found that the State’s Top Ten Percent law – enacted by the legislature in 1997 when African American enrollment was at an extreme low of 2.7% – had improved the enrollment of minority students at UT Austin by guaranteeing admission to any Texas resident graduating in the top ten percent of his or her high school class, but that racial isolation remained a serious problem on campus.  The question in Fisher is whether the university’s holistic, individualized review violates the Fourteenth Amendment’s guarantee of the equal protection of the laws because it allows for consideration of race.   

For the last two decades, conservatives on the Supreme Court, led by Justice Antonin Scalia and Justice Clarence Thomas and more recently by Chief Justice John Roberts, have been waging a war on affirmative action.  In their view, the Equal Protection Clause requires the government to be colorblind, equally forbidding Jim Crow segregation as well as affirmative action programs that seek to overcome the legacy of hundreds of years of slavery and racial discrimination.   These arguments – by the Court’s self-professed conservative originalists – cannot be squared with the history of the Fourteenth Amendment, which recognized a basic distinction between government action designed to oppress African Americans and government action to secure to them the Constitution’s promise of equal opportunity.

 As chronicled in Perfecting the Declaration, CAC’s recent study of the text and history of the Equal Protection Clause, the Framers of the Fourteenth Amendment did not view efforts to ensure equal opportunity as a violation of the Fourteenth Amendment.  On the contrary, they recognized a basic distinction between oppression and assistance, between laws designed to subordinate and laws designed to make equal opportunity a reality for all.  At the same time they adopted the Equal Protection Clause of the Fourteenth Amendment, the Framers enacted race-conscious legislation designed to help ensure that the Amendment’s promise of equality would become a reality for African Americans seeking to make the transformation from slavery to citizenship.  The Freedmen’s Bureau Acts, as well as a host of other race-conscious legislation enacted during Reconstruction, gave financial and educational benefits to African Americans, who needed the affirmative assistance of the federal government to enjoy meaningfully the Constitution’s new guarantees of freedom and equality.       

The current conservative attack on affirmative action depends on paying lip service to this history – viewing it as relevant to redress slavery but not the century-plus of racial discrimination that followed it – while wrenching out of context Justice John Marshall Harlan’s famous proclamation in Plessy v. Ferguson that “the Constitution is color-blind and neither knows nor tolerates classes among citizens.”  Justice Thomas and others have invoked Justice Harlan’s dissent for the proposition that the Equal Protection Clause forbids all laws that classify on the basis of race, but in doing so they have misread Justice Harlan’s canonical explanation of the Fourteenth Amendment’s guarantee of equality for all persons.  In Plessy, Justice Harlan condemned state-sponsored racial segregation because it was caste legislation, “putting the brand of servitude and degradation upon a large class of our fellow citizens” and a denial of equal rights under the law, infringing on basic liberties of freedom of movement and association.  Affirmative action policies that use race to help break down stereotypes and redress racial isolation in schools cannot be condemned on these bases.

Progressives have the upper hand in this constitutional debate – the difference between oppression and assistance is deeply ingrained in our constitutional text and history – but to win in Fisher, they have to convince Justice Anthony Kennedy that UT Austin’s admission program survives strict scrutiny.  Justice Kennedy began his career as a trenchant critic of affirmative action programs, but in recent years, he has forged a middle position on the Court, demanding that racial classifications be justified by strict scrutiny while recognizing that the government has a critical – and compelling – role in fostering equality of opportunity.          

In 2003, Justice Kennedy’s dissent in Grutter recognized 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, provided that the program can meet the test of strict scrutiny by the judiciary.”  To be constitutional, he wrote, “a university’s compelling state interest in a diverse student body must be achieved by a system where individual assessment is safeguarded through the entire process.”   Justice Kennedy would have struck down the University of Michigan’s policy under strict scrutiny because, as implemented, the University sought “to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas.”    

In 2007, in Parents Involved v. Seattle School District, Justice Kennedy broke from the rest of the Court’s conservatives.   While Chief Justice Roberts, joined by the Court’s other conservative Justices, pronounced that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race,” Justice Kennedy rejected that sweeping statement, calling it inconsistent “with the history, meaning and reach of the Equal Protection Clause.”  In line with the history of the Fourteenth Amendment, Justice Kennedy recognized the government’s compelling interest “in ensuring that all people have equal opportunity regardless of their race,” and rejected the notion that “the Constitution mandates that state and local authorities must accept the status quo of racial isolation in the schools.”  Justice Kennedy concurred in the judgment invalidating the challenged policies because they used race in what he considered a heavy-handed, balkanizing manner – “reduc[ing] children to racial chits” – and thus could not satisfy strict scrutiny.

In Fisher, if Justice Kennedy pays heed to the text and history of the Fourteenth Amendment as well as his recent opinions, he should make a full break from Chief Justice Roberts and other conservatives on the meaning of equality.  The University’s careful, tailored effort to redress racial isolation represents the best of our constitutional traditions, respecting the equality of all persons while taking modest steps to break down the lingering vestiges of our long history of racial discrimination.  In Parents Involved, Justice Kennedy observed that the “Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all its children.”  Fisher gives Justice Kennedy the opportunity to make good on his words and to honor the promise of equality at the core of the Constitution’s text and history.

This article is cross-posted at Balkinization.