Ironically, had Justice Scalia lived Fisher II might have been 4-4 or become Fisher III. But instead the more liberal Justices plus Justice Kennedy prevailed in this win for affirmative action.

In Fisher v. University of Texas at Austin the Supreme Court ruled 4-3 that the University of Texas at Austin’s race-conscious admissions program is constitutional, as least of 2008, when this case was first brought. Justice Kagan did not participate in this case.

Even though this case arises in the higher education context, the Supreme Court has decided relatively few affirmative action cases so all are of interest to state and local governments that use race as a factor in decision-making.  

Per Texas’s Top Ten Percent Plan, the top ten percent of Texas high school graduates are automatically admitted to UT Austin, filling up to 75 percent of the class. Other students are admitted based on a combination of their grades and test scores and “personal achievement index.” Race is considered as one factor in one of the two components of an applicant’s “personal achievement index.”

UT Austin denied Abigail Fisher, a white Texan who did not graduate in the top ten percent of her class, admission. She sued claiming the university’s use of race in admissions violates the Fourteenth Amendment’s Equal Protection Clause.    

The Supreme Court has held that the use of race in college admissions is constitutional if race is used to further the compelling government interest of diversity and is narrowly tailored. In Fisher I the Court held that the Fifth Circuit, which upheld UT Austin’s admissions policy, should not have deferred to UT Austin’s argument that its use of race is narrowly tailored.

In Fisher II Justice Kennedy rejects Fisher’s four arguments that UT Austin’s admissions policy isn’t narrowly tailored.

Fisher first claimed the university should have specified more precisely what level of minority enrollment would constitute a “critical mass.” The Court responded that critical mass isn’t a number and that the university articulated “concrete and precise goals” about the “educational values it [sought] to realize” through its race-conscious admissions process.

Second, the Court rejected the argument that the university already achieved a critical mass of minority students using the Top Ten Percent Plan. Between 1996 and 2002, when race wasn’t a factor in admissions, minority enrollment stagnated.

The Court disagreed with Fisher’s argument that the use of race had only a minimal impact on minority enrollment. Between 2003 and 2007, when race was considered, Hispanic and African-American enrollment increased 54 percent and 94 percent respectively. And ‘[t]he fact that race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring, not evidence of unconstitutionality.”

Finally the Court rejected Fisher’s argument that UT Austin could have used numerous race-neutral means of achieving more diversity. The Court noted that the university tried many of her suggestions but they didn’t increase diversity. And admitting all students based on a percentage plan “would sacrifice all other aspects of diversity in pursuit of enrolling a higher number of minority students.”  

Justice Kennedy’s opinion is an apology, and lecture, and a warning. He was careful to point out that in 2008 UT Austin’s plan had only been in place for three years. Eight years later it has far more data to evaluate whether its plan is still constitutional. “The University must continue to use this data to scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.”