Justice Kennedy's Role in "Fisher"

Those of us in the social science community who have been following the Fisher case know that the U.S. Supreme Court’s decision, like the 2003 decisions in Grutter v. Bollinger and Gratz v. Bollinger, could have a lasting impact on the practices and policies of postsecondary institutions across the country. As social scientists, we also believe that legal developments in this area should be informed by research findings that are relevant to the Court’s legal determinations. For these reasons, we came together, as organizations as well as individuals, to present social science research that spoke directly to the legal issues in Fisher. Overall, 73 amicus curiae (friend-of-the-court briefs) were filed in support of the University of Texas at Austin’s holistic admissions policy. I had the honor to serve as counsel of record for one of these, filed by 444 social science researchers from 172 institutions in 42 states across the country.

Of course, it is very difficult to find unanimity in research findings—and if we did, we might question the results—but the overwhelming number of research studies continue to support Grutter’s findings regarding 1) the educational benefits of diversity and 2) the need to continue to consider race in a limited manner to achieve these benefits. In the brief, we summarized evidence that reflected the consensus of the social science community to show why UT Austin is justified in considering race as one of many factors in admissions to attain the educational benefits of diversity. We summarize a body of work documenting that when institutions cannot consider race in admissions—as has been the case in states that have banned affirmative action via ballot measures or other policies—racial and ethnic diversity has declined across various educational sectors, not just at selective undergraduate institutions, but in the professional fields of law, business, and medicine, as well as other graduate disciplines. These declines have taken place despite myriad “race-neutral” efforts intended to achieve racial diversity and undermine the nation’s ability to meet workforce projections and remain internationally competitive.

After attending the oral argument on October 10th, I am more convinced that it is important these research findings inform the deliberations in the case. While it is always difficult to predict the outcome of a decision based on the oral argument, the Court appears to be divided into two blocks, with Justice Kennedy potentially casting the deciding vote. Only eight justices are considering the case; Justice Kagan recused herself, presumably because she worked on the case on behalf of the Obama administration when she served as solicitor general. On one side, three justices (Breyer, Ginsburg, and Sotomayor) may find UT Austin’s plan constitutional or dismiss the challenge on the grounds that Abigail Fisher does not have an injury that the Court can address. On the other side, four justices (Chief Justice Roberts and Justices Scalia, Thomas, and Alito) would limit, or as Justice Sotomayor phrased it, potentially “gut” the holding in Grutter.

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