Supreme Court watchers are wearing out the word "punt" in explaining last month's decision about affirmative action in university admissions. But is it a punt back to a lower court for further consideration, or does it just look like a punt, hiding the ball for a bigger play?
In Fisher v. University of Texas, the justices upheld the major precedents regarding admissions that count race as a factor — but they also told the lower court to stop treating universities with such deference and to get serious about race-neutral alternatives to achieving diversity. No longer will good faith efforts be enough for universities to justify race conscious admissions standards. Instead, they know they will be under the microscope. That doesn't sound like a punt — it's more like a game changer in disguise.
On one hand, Fisher shows the staying power of the landmark 1978 Supreme Court decision in Regents v. Bakke. Justice Lewis F. Powell Jr.'s majority opinion, largely panned at the time, brought together the reasoning of a fractured court, shooting down a quota-like affirmative action admissions program but upholding the use of race as one factor among many that college officials could use in deciding whether to admit a student. It was a good compromise — or at least one that has been difficult to overturn, although it was never embraced enthusiastically. Now the 7-1 Fisher opinion follows Bakke in a way that makes proponents of affirmative action breathe a sigh of relief: affirmative action remains viable.
But the tone in Fisher is decidedly less than positive in considering the importance of universities in our nation — and that has implications for the constitutional foundation on which affirmative action stands: academic freedom. Academic freedom was recognized by the Supreme Court in a 1957 case (Sweezy v. New Hampshire), when Justice Felix Frankfurter identified four essential freedoms of a university: "to determine itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." The goal here is to protect universities from outside pressures as they craft a robust educational experience within their fields of expertise and in keeping with the general principles of intellectual growth.
The notion that university settings are different than other contexts resurfaced in Bakke and has been carried through other affirmative action decisions since. As recently as 2007, Chief Justice John Roberts noted that in light of "the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition."
But Justice Kennedy's opinion in Fisher lacks much of this language. Indeed, it looks for "additional guidance" in cases that did not deal with academic institutions. In doing so, he moves toward rejecting the core idea that the university presents a special context — protected by academic freedom as a training ground for future leaders — when applying strict scrutiny to racial considerations. While courts should allow some deference to universities about matters of educational goals, he argues, they should stop when it comes to crafting the means to achieving those goals.
"On this point, the University receives no deference," Justice Kennedy concludes.
Boom. It's significant that this is one of the shortest sentences in the Fisher opinion. It strikes a definitive tone and begs to be extracted for easy quoting. The rose-colored glasses have come off. Perhaps it was the tone as much as the content that achieved the astonishing seven signatures on such a controversial topic.
Justice Kennedy also asserted that that universities must make an effort to show that they could not "achieve sufficient diversity without using racial classifications," and that the court "must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity." This idea came from a 2003 case, and it is a far cry from Powell's test in Bakke, which permitted the consideration of race on a case-by-case basis and as a single factor among many admission considerations.
Historically, university affirmative action cases have zeroed in on eliminating quotas and ensuring good-faith efforts to consider race sparingly and only as necessary for a robust college experience. They have not aspired to race-neutrality, especially when the constitutionally upheld end-goal is racial diversity. For decades, the goal of student diversity was given the full-throated support first articulated in the Bakke decision. Now, the Supreme Court appears resigned to, and perhaps even to encourage, a drawing down of that position. There's a new line, one in which American higher education has no special status in our society, and where the goal of diversity is a necessary evil.
Court observers can call that a punt — but it's a punt that could defeat affirmative action once and for all. There's still time left on the clock, but this decision may have been a game changer.
M. Kelly Carr is assistant professor in the University of Baltimore's School of Communication Design. Her research explores the intersection of public discourse and legal rhetoric. Her recently completed book focuses on the 1978 Regents of the University of California v. Bakke case. Her email is kcarr@ubalt.edu.