Key Justice Suggests Supreme Court Could Punt, Again, On Affirmative Action

As the more conservative and liberal justices sparred over the merits of the University of Texas-Austin’s use affirmative action, Justice Anthony Kennedy suggested another path — one that would yet again avoid a Supreme Court decision on affirmative action.

WASHINGTON — Justice Anthony Kennedy found himself at the center of the Supreme Court’s debate over affirmative action on Wednesday — and suggested, for a second time, that avoiding a decision on the constitutionality of the University of Texas-Austin's admissions plan could be the path forward for the court.

The Supreme Court in 2013 avoided a decision on whether Abigail Fisher’s claim that UT-Austin’s admissions plan unconstitutionally considered race should succeed. Instead, the court, in an opinion written by Kennedy, found fault with the way the 5th Circuit Court of Appeals applied the high court’s test for reviewing such policies, and sent the case back to the appeals court.

That ruling avoided addressing the sharp divisions on the court over affirmative action — divisions on full display Wednesday and that Kennedy appeared open to avoiding yet again.

Three-quarters of the University of Texas-Austin’s admissions come from the so-called “Top Ten” plan adopted by the state, which provides admission to any student in the top 10% of their high school class. The remaining quarter, under UT-Austin’s plan, are admitted through a “holistic review” process that includes consideration of several factors, one of which is race.

After the Supreme Court sent the case back in 2013, the 5th Circuit held in July 2014 that the plan passed the “strict scrutiny” test. Fisher appealed, the Supreme Court agreed to hear the case again, and, on Wednesday, the justices fought out the underlying questions of whether the university met the “demanding burden” of strict scrutiny, as Fisher’s lawyer, Bert Rein, described it.

Rein argued that the university had not passed the test: UT had not, he argued, clearly shown what compelling interest it was advancing that justified the use of race, that the use of race was necessary to advance that interest, or that the program was narrowly tailored to advance the interest.

The university and the Obama administration, on the other side, counter that the test has been passed: The record in the case supports the use of race in the holistic review process, UT lawyer Gregory Garre said, and it has had a “meaningful impact” in the years since it was implemented.

Repeatedly, however, Kennedy raised the possibility of the “perspective [that] could be gained” by sending the case back to the trial court, where additional evidence on these issues could be submitted into the record. The recent aversion to deciding affirmative action cases is a relatively new move for Kennedy, who has voted to restrict affirmative action in other cases from earlier in his time on the high court.

“This is the kind of thing we should know but don’t know,” Kennedy said in response to a question from Justice Samuel Alito regarding classroom diversity changes in the wake of the holistic review process including race as a factor.

Kennedy later raised the issue with Garre repeatedly, asking what could be gained on remand. The question was raised again during the Obama administration’s time defending the program, with Solicitor General Donald Verrilli, Jr., asked about the possibility.

While such a ruling would not appear to make anyone particularly happy, it did appear to provide Kennedy with a path other than those offered by the more conservative justices, who have made their aversion to affirmative action abundantly clear, or the more liberal justices, who have made their support for continued affirmative action programs where necessary equally clear.

Throughout the argument, it appeared at several points that Chief Justice John Roberts and Stephen Breyer appeared to be keenly aware of Kennedy’s struggle — with both of them providing evidence that they were open to working with him on finding out where he stood and how the case could be resolved in a way that would get him voting their way.

In contrast, Alito and Justice Antonin Scalia, on the right, and Justices Ruth Bader Ginsburg (who was the sole justice dissenting from the 2013 Fisher decision because she believes the program should be upheld) and Sonia Sotomayor, on the left, appeared more interested in pressing their case against or for the program than in figuring out where Kennedy stood.

Alito and Scalia railed against the program, with Alito sparring with Garre at one point over the university’s position that it needs to add race in as a factor to its holistic review process in order to ensure diversity in that quarter of the class. Alito said this position “suggest[s] that there is something deficient about the African-American students and the Hispanic students who are admitted under the top 10% plan,” later adding that a “pernicious stereotype” about the quality of those students was underlying that position.

Roberts, on the other hand, suggested at one point that affirmative action could be continuing in higher education for at least some time more, asking Garre, “Are we going to hit the deadline? Is this going to be done in 12 years?” — a reference to Justice Sandra Day O’Connor’s 2003 decision upholding the use of race in university admissions, in which she also noted, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

On the other side, Ginsburg and Sotomayor pressed on the perceived strength of the university’s case for its program and for affirmative action more broadly, with Sotomayor reading out statistics about African-American and Hispanic enrollment numbers after race was added as a factor to the holistic review. On the larger question, she said to Rein at one point, “I fear something,” and asked of the proof he said the university would have to show, “Will any holistic review ever survive [court review]?”

Breyer — though he did some of that, to be sure — at multiple points joined in with Kennedy’s line of questioning regarding what could be gained through a remand of the case to the district court.

Justice Elena Kagan, due to her involvement in the case while in the Obama administration, is not participating in the arguments or decision of the case. A 4-4 split decision in the case would keep the 5th Circuit ruling upholding the program in place, but the Supreme Court’s decision would not serve as a national precedent.

A decision is expected by the end of June.

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