Fisher and the Issue of Race-Neutrality

As Gerard observed earlier this morning, the Supreme Court’s decision in Fisher v. Texas, the Term’s pending affirmative action decision, is out, and, insofar as the majority decision is concerned, breaks little new ground.

As Ilya Somin points out over at the Volokh Conspiracy, however, there is potentially ground-breaking language—in Justice Ginsburg’s dissent, in which she argues that programs like Texas’s Top Ten Percent Law (which was designed to increase racial diversity at UT by admitting the top 10% of all graduates from Texas’s high schools) are not race-neutral. See Fisher dissent at 2 (“I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious”).

This issue (whether programs with the intended effect of integration or the remediation of substantive racial inequalities that are formally race-neutral on their face should be considered race-neutral) is one that conservative commentators and litigation groups have directed increasing attention to in recent years, contending that such programs are not race-neutral and should be subjected to strict scrutiny. Justice Ginsburg, of course, directs her argument regarding the 10% program’s lack of race-neutrality towards different ends (arguing that government actors “need not be blind to the lingering effects of an ‘overtly discriminatory past’” and should be able to be candid in their efforts to remediate our nation’s long history of race discrimination).  And, as others have shown, a recognition that such programs are in some sense non-race-neutral need not, under the Court’s precedents, compel the broad application of strict scrutiny. (See e.g., here, here and here). Nevertheless, I suspect, as a practical matter, citations to Justice Ginsburg’s opinion will be appearing more often in the briefing of the Pacific Legal Foundation than those of the NAACP LDF, raising the question of why she chose to frame her dissent in those particular terms (terms that were unnecessary to meet the substance of the majority opinion).

There are a number of possible explanations for Justice Ginsburg’s approach. But I suspect that the most likely may simply be her frustration with the lack of candor that exists around so much of the Court’s approach to race. As others have shown, the effective result of the Court’s approach in Grutter and Gratz was to sanction an affirmative action plan that placed at least as much weight on race as the plan that was struck down, but did so with lesser transparency.  And, as my recent work, among others has explored, the Court’s majority has—despite rhetorical commitments to treating uses of race as across the board suspect and invidious—used mechanisms such as docket management to create a regime that effectively exempts certain preferred uses of race from meaningful review. In short, the Court’s contemporary approach to race often seems deliberately crafted to obscure the ways in which race continues to be used in our society, as opposed to fostering a candid conversation about how and when race should continue to be used. (Indeed, it is sometimes self-consciously so targeted, as a number of the Court’s race moderates have argued explicitly in favor of measures that reduce racial divisiveness, a result which is often achieved by obscuring or softening the role of race).

Whether Justice Ginsburg’s dissent in Fisher will be seen by her colleagues on the Court as an invitation to a more candid race dialog remains to be seen. Certainly, it should be seen as an invitation to all those who care about race—conservative and liberal alike—to prepare for the possibility of a future in which there may be more explicit and searching judicial consideration of the constitutional stature of programs like the Texas 10% program.

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4 Responses

  1. Sam Bagenstos says:

    So one theory is that this is the key to why the decision took so long. Perhaps the original Kennedy opinion invalidated the UT plan on narrow tailoring grounds based on the conclusion that the 10% plan was a race-neutral alternative that achieved the benefits of diversity, RBG wrote a dissent that hit the majority hard on whether the 10% plan was race-neutral, Kennedy felt he needed to respond but had trouble responding, Breyer offered to join an opinion that said good faith isn’t enough for narrow tailoring, and Kennedy went that route (with RBG revising her dissent). That would explain why RBG focused on the what-is-race-neutral issue in her brief dissent, even though Kennedy didn’t. But I’m just making this up, of course. None of the theories I’ve seen (including the one I just articulated) really make a whole heck of a lot of sense as to why the case took so long.

  2. Katie Eyer says:

    Sam, that same thought had occurred to me — her dissent really does read like a response to a different opinion, and it would make some sense of the long delay. But given how short it is, and how unlikely it is that she’s not aware of the stakes, it seemed like the choice to leave that language in must have been intentional. I went back and looked at Gratz, and she does mention this issue there as well, albeit in passing in a footnote, so it seems to be something she’s been dwelling on for some time.

  3. Jon Weinberg says:

    I think Sam’s got the right idea (setting aside a few of the details). One of the hardest questions here is why we *didn’t* see a majority opinion striking down the UT plan on narrow tailoring grounds, which I had thought — before Monday — was the obvious likely result. Given the long delay, there’s a lot of appeal to a theory that AK initially drafted such an opinion but that for whatever reason (including the one Sam suggests) it didn’t write, and that some number of additional Justices joined in connection with narrowing the holding.

  4. Bruce D. says:

    I also have to say Sam has the right idea. There are many theories that I’ve heard about this and none truly make any sense as to why this case took so long.