Right-wing media appear stunned as Justice Anthony Kennedy refused to join his more radical conservative colleagues on the Supreme Court and strike down affirmative action in higher education, instead reaffirming modern civil rights law that holds race-conscious admissions policies remain necessary for equal opportunity in today's society.
Kennedy's 7-1 majority opinion in Fisher v. University of Texas at Austin is essentially the reiteration of his controlling analysis in Parents Involved v. Seattle School District No. 1 (2007), which affirmed the constitutionality and continued necessity of race-conscious programs that seek to prevent the resegregation of public education.
In lockstep with conservative activists who are using the closely split Supreme Court as an opportunity to overturn decades of civil rights law, right-wing media have been repeatedly clamoring for the opposite of what just occurred in Fisher. So far, right-wing media coverage has been muted or is incorrectly pretending Kennedy's opinion breaks significant new ground.
Fox News host Megyn Kelly on America Live - in addition to dredging up the myth that the plaintiff in question was rejected in the admissions process because of her race - was shocked at Fisher's utterly unsurprising reminder that government's use of race typically requires strict scrutiny from the courts. From University of California Irvine School of Law Dean Erwin Chemerinsky's leading treatise, Constitutional Law, Principles and Policies, most recently updated in 2006:
It now is clearly established that strict scrutiny is used to evaluate all government affirmative action plans. In Adarand Constructors, Inc. v. Pena (1995), the Supreme Court said: "[A]ll racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny." The Court reaffirmed that strict scrutiny is the test for affirmative action programs in its most recent cases, Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003).
In Fisher, Kennedy wrote for a near-universal Supreme Court that has now sent a challenge to the University of Texas' affirmative action program back down to the U.S. Court of Appeals for the Fifth Circuit because it had not correctly applied the Court's precedent in this area of equal protection law. As has been the law since 1978, upheld most recently in 2003, the use of race as one factor among many in individualized and holistic considerations of applicants to institutions of higher education remains both necessary and constitutional to ensure the diversity of America's future leaders.
Explained by Kennedy six years ago in Parents Involved and newly confirmed in Fisher, there is no so-called "colorblind constitution" that requires American society to tolerate "racial isolation" in schools and deny all children and young adults equal educational opportunity:
[There is an] all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account...The plurality's postulate that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race," is not sufficient to decide these cases...To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken.
The statement by Justice Harlan that "[o]ur Constitution is color-blind" was most certainly justified in the context of his dissent in Plessy v. Ferguson... In the real world, it is regrettable to say, it cannot be a universal constitutional principle. In the administration of public schools by the state and local authorities it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition.
Accordingly, media outlets should not be shocked that in Fisher, Kennedy let it be known that he continues to believe properly tailored affirmative action programs remain constitutional under the Fourteenth Amendment.
Similarly, if right-wing media believe that Kennedy's insistence in Fisher that educational institutions first exhaust "available, workable race-neutral alternatives" before turning to race-conscious attempts to create a diverse student body means affirmative action law is now "tightened" or "rein[ed] in," they haven't been paying attention. Not only did Kennedy explain this requirement that affirmative action should only be used as a necessary "last resort" in his 2007 Parents Involved opinion, the preference for "race-neutral" means for achieving diversity in higher education was specifically identified as imperative in Grutter v. Bollinger, which laid down the rules for modern affirmative action programs in 2003 that Kennedy clearly cites in Fisher.
If anything, Fisher is a reminder that former Justice Sandra Day O'Connor's meticulous attempt in Grutter to forge a compromise on the need for race-conscious admissions policies to prevent segregated higher education not only remains crucial, it continues to be good law.
Indeed, the fact that conservative Chief Justice John Roberts and Justice Samuel Alito signed onto Kennedy's opinion without comment, as opposed to conservative Justices Antonin Scalia, who bluntly stated he is awaiting the opportunity to overrule Grutter, and Clarence Thomas, who compared modern civil rights law to the "outright racial discrimination...of slaveholders and segregationists," may mean that O'Connor's careful Grutter opinion has new bipartisan vitality.
Future opinions will reveal how committed those conservatives who joined Kennedy and the liberal Justices' stamp of approval for Grutter actually are. Perhaps Roberts and Alito have seen the wisdom of O'Connor's careful explanation of constitutional affirmative action. Or perhaps they have shied away from Scalia and Thomas' endorsement of the ahistorical and unprincipled right-wing challenges to stare decisis that the most recent challenges to modern civil rights law represent.
The end result is the same, however: universities' ongoing attempts to ensure that their doors are not barred to students of many different backgrounds, an effort that requires them to take account of race, remain constitutional.