Op-Ed: How race-based affirmative action could return to UC

On Thursday, the Supreme Court surprised a lot of observers when it upheld, 4-3, the race-based affirmative action plan employed by the University of Texas in its undergraduate admissions.

Just three years ago, the court had avoided ruling definitively in the same case, Fisher vs. University of Texas, sending it back to the 5th Circuit Court of Appeals for reconsideration using reasoning and language that seemed skeptical of the Texas plan. So when the court agreed to hear the case anew last year many analysts thought a majority of justices would be inhospitable to any admissions plan that overtly took into account the race of individual applicants.

But the court’s current swing vote, Justice Anthony Kennedy, who wrote the majority opinion in Fisher, joined with the more liberal justices to produce a result that has encouraged proponents of affirmative action and disappointed abolitionists.

Fisher is far-reaching in many ways. The last time the court conclusively ruled on the validity of a university affirmative action plan was back in 2003 when, by a 5-4 vote it upheld the University of Michigan Law School’s race-based admissions program in Grutter vs. Bollinger. Fisher is also the first substantive assessment of an affirmative action scheme since Justice Samuel A. Alito replaced Sandra Day O’Connor, the author of Grutter in 2005. In other words, this case shows how the court has evolved on affirmative action in nearly a decade and a half.

Or more precisely, it shows how Justice Kennedy has evolved on the issue. In 2003, he objected vigorously to the Grutter decision, writing his own dissent and also joining one that called Michigan’s admissions program “a naked effort to achieve racial balancing.” But on Thursday in upholding a plan similar in essence to Michigan’s, he quoted extensively from the Grutter majority opinion, signaling that he had either changed his mind, or simply accepted Grutter as precedent.

One way or another, though, Kennedy has come to terms with the three-part teaching in the Michigan case: Race-based admissions programs are consistent with the equal protection clause of the 14th Amendment as long as a public university can plausibly explain why diversity is important to its educational objectives, can show that considering each applicant’s race is required to accomplish a helpful level of diversity, and can convince the court that it isn’t formally using racial quotas.

Given the well-known affirmative action views of the rest of the court, Kennedy’s approval of the Texas plan means that no matter who fills the vacancy created by Justice Antonin Scalia’s passing — and therefore, no matter who is elected president in November or what happens to the GOP majority in the Senate — the window for race-based affirmative action under the federal Constitution will remain open for the foreseeable future.

That opening has significant implications for California. In 1996 California voters adopted Proposition 209, a state constitutional ban on any use of race in admissions to its public universities. Since then, some University of California campuses have struggled to achieve the level of diversity they desire, especially when it comes to black and Latino students.

In a friend of the court brief submitted in the Fisher case, California Atty. Gen. Kamala Harris asked the Supreme Court to “reaffirm its decision that public colleges and universities may consider race as one factor in admissions decisions.” She made it clear that California wanted the option to revisit Proposition 209. There is indeed a move to repeal the measure and Fisher vs. Texas will likely add fuel to that effort.

Of course, not every admissions plan using race would satisfy Kennedy and the terms of Fisher. UC officials would have to say why a racially diverse student body helps its educational mission (the Fisher majority gave the University of Texas a lot of deference on this issue) and why race-neutral approaches, such as those UC is now using, don’t produce enough diversity. The university would have to show that its program did not take the form of a racial quota system and that admissions officials took seriously other kinds of diversity beyond the racial variety. It’s not hard to imagine that UC (and Cal State too) could meet those requirements in much the same way that the University of Texas did.

First, however, California voters would need to agree to remove Proposition 209 from the state constitution. Some Asian American groups might object — the admission rates for Asian Americans have increased at UC post-Proposition 209. But the larger question relates to the nature of the state’s electorate. Justice Kennedy evidently changed his mind about whether to tolerate race-based admissions policies. Have California voters changed enough in the last two decades to do the same?

Vikram Amar is dean and a professor at the University of Illinois College of Law. He is the former dean of academic affairs at the UC Davis Law School.

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