The Supreme Court may issue a decision in an important affirmative action case—Fisher v. University of Texas at Austin—any day now. (Although, more accurately, there are only certain days on which the Court issues its decisions. For more information on the Court’s calendar, see http://www.scotusblog.com).
Each of the equal protection cases currently pending on the Court’s docket—Fisher as well as the two same-sex marriage cases—is important not only because of the substantive rights it will determine, but because of how the decisions in these cases may shape the future of equal protection law.
In this regard, my concern with the affirmative action case—Fisher v. University of Texas at Austin—is how the Court’s decision may affect the constitutional standard known as strict scrutiny.
In many areas of constitutional law, the Court will apply different levels of scrutiny in different cases depending on the rights at stake. In the area of equal protection law, the level of scrutiny is determined either by the right at stake or by the classification of persons relied on by the law. So, for example, laws that rely on racial classifications are subject to so-called “strict scrutiny,” which requires the state to prove that the racial classification at issue is necessary to serve a compelling state interest. The Court applies a heightened level of judicial scrutiny in such cases because racial classifications are considered inherently suspect. When a law relies on what is seen as a more neutral classification, the Court will not closely examine the fit between the laws means and ends, and will generally defer to the judgment of the legislative branches.
In a move that may seem counterintuitive to the first-year law student, the Court applies strict scrutiny to racial classifications regardless of whether the classifications are designed to subordinate racial minorities (e.g., by imposing racial segregation) or to remedy past subordination (e.g., affirmative action policies). So long as a law relies on a racial classification, it will be subject to strict scrutiny, regardless of the law’s purpose.
Therefore, the Court will review the University of Texas affirmative action policy under this strict standard. The specifics of the policy are somewhat complex, but suffice it to say that it was carefully tailored to comply with applicable precedent, and has an extremely modest impact on the composition of the student body. Nonetheless, the University is being asked to prove that the policy is necessary to serve a compelling state interest.
Fortunately for the University, a plurality of the Court held way back in 1978 (Regents of the University of California v. Bakke) held that promoting diversity in educational environments is a compelling state interest. This holding was then reaffirmed twenty-five years later in another affirmative action decision (Grutter v. Bollinger). Typically, absent an intervening change in the law, this would be sufficient to establish the first prong of the strict scrutiny test.
But the plaintiff in Fisher has made a somewhat different argument—one that the federal court of appeals apparently bought. Namely, she argued that the University had to prove that educational diversity was still a compelling state interest for this University—indeed, this particular campus.
This is an important departure from the usual strict scrutiny inquiry. Typically, the question of whether something is a compelling state interest is asked in the abstract, and decided as a matter of law. The fact-specific portion of the test focuses on the question of whether the classification actually serves the identified interest and is narrowly tailored to do so.
The seeds for this argument were sown in Grutter, where Justice O’Connor, writing for the majority, speculated that, as our society evolved, race would inevitably cease to matter as an aspect of identity, and therefore race would inevitably cease to matter as a component of educational diversity.
Plaintiff Fisher argues that time is now. Specifically, she argues that in 2013, there is enough diversity at the University of Texas at Austin such that the University no longer has a compelling state interest in pursuing educational diversity.
This framing of the question threatens to fundamentally alter the nature of the compelling state interest inquiry. If the Court adopts this approach, parties will be able to constantly re-litigate the question of what suffices as a compelling state interest, even when the issue has been decided as a matter of law in prior cases. This is a bad development for the pursuit of educational diversity, for equal protection jurisprudence, and for judicial economy in these cases.
(For a longer essay on this subject, please see my piece in the University of Maryland Law Review Endnotes: http://digitalcommons.law.umaryland.edu/endnotes/23/)