It is hard to remember a time in recent memory when the problems of racial injustice have been more visible and the need to promote opportunities for people of different racial and ethnic backgrounds has seemed more urgent. The very rawness and extent of these injustices are too disturbing to bear: videos of police killing unarmed African Americans;1 reports by the Department of Justice documenting law enforcement’s excessive force against, and harassment of, African Americans in Baltimore2 and Ferguson;3 xenophobic targeting of American Muslims and Mexican Americans by a presidential candidate;4 judicial findings of overt minority voter suppression5 — to say nothing of systemic problems like disproportionately high unemployment6 and school7 and housing segregation8 that have long drained opportunities from communities of color. The list goes on and on.9
Given this persistent racism, we should put an end to the fiction fostered by the Supreme Court for the last several decades10 that colorblindness is an appropriate response to our racial problems.11 Along with a growing body of evidence about the pervasiveness and impact of implicit bias,12 these events counsel instead that we focus on building a society that is more open, inclusive, and welcoming of racial and ethnic differences. That project requires a measure of intentionality that only affirmative action can deliver.
Fisher v. University of Texas at Austin (Fisher II)13 is cause for celebration because it reinforces the legitimacy of the diversity rationale for affirmative action in higher education and, therefore, underscores a principle of racial inclusion that has otherwise been absent from the Court’s equal protection doctrine.14 In this respect, Fisher II matters because of what it was not: a loss that closed yet another door to opportunity for people of color.
Professor Kimberly Jenkins Robinson’s Comment portrays Fisher II differently. She argues that the decision imposes a “demanding evidentiary burden” on universities that practice race-conscious admissions15 and, therefore, runs the risk of chilling affirmative action.16 More specifically, she contends that the Court in Fisher I17 and Fisher II tightened Grutter v. Bollinger’s18 narrow-tailoring standard.19
It is not clear, however, that the standard articulated in Fisher I, as applied in Fisher II, is meaningfully different from that in Grutter.20 Rather, what the Court objected to in Fisher I was the Fifth Circuit panel’s misinterpretation of language in Grutter that “the narrow-tailoring inquiry . . . must be calibrated to fit the distinct issues raised by the use of race to achieve student body diversity in public higher education.”21 The court of appeals read that language to mean that it should defer to the university’s judgment about the necessity of using race.22
A more plausible reading of the Grutter language is that the Court intended the narrow-tailoring inquiry to accommodate the unique educational benefits that accompany diversity-focused admissions policies in higher education. The Grutter opinion took pains to distinguish its diversity analysis — which focuses on ensuring consideration of all “pertinent elements of diversity in light of the particular qualifications of each applicant” — from its other (nondiversity-based) affirmative action jurisprudence where such concerns do not figure into the Court’s equal protection standard.23 Understood in this way, Fisher I did not impose a more burdensome narrow-tailoring standard than Grutter but merely clarified that narrow tailoring was not less burdensome than what Grutter intended.24
Other aspects of the Fisher II opinion also cast some doubt on the notion that the Court has imposed a more demanding burden of proof.25 Indeed, the decision recognizes that some evidentiary uncertainty inheres in the educational nature of the diversity rationale. As Justice Kennedy observed, “[a] university is in large part defined by those intangible ‘qualities which are incapable of objective measurement but which make for greatness,’”26 meaning that the benefits of inclusion cannot necessarily be captured with quantitative precision.27 Of course, we can reasonably assume that future higher education cases might lead courts to compare the evidentiary record of defending institutions with that compiled by the University of Texas. And, from this perspective, Fisher II provides welcome guidance about the kinds of evidence that similarly situated universities might offer to justify their policies.28 However, this does not mean that the Court has in fact heightened the evidentiary standard beyond what Grutter required, as Robinson contends.29
Robinson also cautions that we should be wary of Fisher II because Justice O’Connor’s 2003 Grutter opinion sets an expiration date for affirmative action. Robinson points to Justice O’Connor’s declaration that the Court “expect[s]” explicit uses of race to “no longer be necessary” in twenty-five years,30 which, if taken literally, would mean that affirmative action would end in 2028.31
But Justice O’Connor’s statement suggests goals that are more aspirational than mandatory.32 Her statement begins with the observation that “the number of minority applicants with high grades and test scores increased” in the twenty-five years between Grutter and Regents of the University of California v. Bakke,33 where the diversity rationale first surfaced.34 Justice O’Connor’s twenty-five-year declaration likely reflects her assumption that such progress would continue through the next quarter century, obviating the need for race-specific measures to enhance minority representation in higher education.35 As recent history illustrates, however, we are nowhere close to the kind of sustained improvement in opportunities for people of color that would justify Justice O’Connor’s optimism.36 The Court’s recognition of this hard reality may explain why Fisher II nowhere mentions Justice O’Connor’s hope for permanently sunsetting affirmative action.37
It is worth emphasizing that Fisher II embraces Grutter’s central conclusion about the social benefits of diversity.38 As Robinson notes, the decision approvingly cites the University of Texas’s goals of reducing stereotypes, promoting cross-racial understanding, preparing the student body for diversity in the workplace and the rest of society, and cultivating leaders who have “legitimacy in the eyes of the citizenry” because of their diverse backgrounds.39 Thus, as in Grutter,40 Fisher II acknowledges that the benefits of diversity not only inure to students in institutions of higher education but also accrue more broadly to the workforce and to society as a whole.41
We should pause on the potential significance of this acknowledgment. Like Grutter,42 Fisher II recognizes that universities do not operate in isolation from other social institutions. The recognition that diversity can deepen our connections across different settings suggests that the diversity rationale should be extended beyond higher education. If preparing students to engage in an increasingly diverse society justifies the narrow consideration of race in college admissions, why not allow similar affirmative action policies in the workforce43 and K-12 education, for example? The nature of the diversity rationale — that our interactions provide opportunities to help us understand one another better44 — should justify its constitutional legitimacy not only in colleges and universities but also across the institutional spectrum.45
Of course, the Court has yet to uphold diversity policies outside higher education.46 And, as the majority opinion notes, Fisher II’s somewhat unique facts may limit its future application.47 But some optimism may be justified if we interpret Fisher II to shift equal protection’s focus from eliminating affirmative action itself, as the Court’s pre-Grutter cases suggest,48 to ensuring the accountability of institutions that practice it. As Fisher II counsels, institutions that rely on race-conscious measures must articulate their institutional goals for diversity in “sufficiently measurable” terms,49 thoughtfully demonstrate why race-neutral alternatives do not suffice for meeting those goals,50 and ensure meaningful and ongoing deliberation about the continued necessity of using race.51 That burden is not light — it requires particular care when adopting and implementing race-conscious policies — as Grutter’s original “serious, good faith consideration” standard might indicate.52 But this rigor does not mean the death knell for affirmative action, as Robinson suggests, so long as institutions invest in the proper procedural safeguards to facilitate judicial scrutiny of race-conscious policies.53
Indeed, Fisher II may give institutions that provide the same kinds of institutional safeguards some constitutional safe harbor to pursue race-conscious diversity policies beyond the context of higher education.54 Justice Kennedy’s concurrence in Parents Involved in Community Schools v. Seattle School District No. 155 hints at this possibility for K-12 education. Justice Kennedy joined in the Court’s opinion that the Seattle and Jefferson County school districts’ blunt racial classifications were neither properly conceptualized nor narrowly tailored.56 A significant problem for Justice Kennedy was that it was difficult to understand precisely why and how the school districts were considering race.57
Justice Kennedy departed, however, from the plurality’s suggestion that diversity itself was not a constitutionally legitimate interest in K-12 education.58 He asserted that promoting diversity and redressing racial isolation can be permissible objectives,59 but that the school districts had fallen short because they did not clearly articulate their educational goals or their means for accomplishing them.60 While indicating his continuing wariness of racial classifications,61 Justice Kennedy’s concurrence suggests that appropriately calibrated policies that advance clear diversity goals may yet satisfy strict scrutiny in other contexts,62 if institutions are willing to do some homework on the front end. As a reliable indicator of the Court’s center-right race jurisprudence, Justice Kennedy’s Parents Involved concurrence hardly signals the end of diversity-based affirmative action,63 particularly when we pair it with his majority opinion in Fisher II.
All that said, it is hard to ignore that the Court decided Fisher II against the backdrop of deep racial unrest, spurred by long-simmering frustrations over police brutality and the multiple failures of our institutions to address pervasive inequality,64 including concentrated, racialized poverty.65 The irony of Fisher II’s win for diversity-based affirmative action, therefore, is that it points to a broader problem, typically lost in the public conversation about race, that the Court over the last several decades has consistently blocked more robust race-conscious policies that could have helped match the expanse and intensity of our dynamic racial problems.66
Eliminating entrenched racial disadvantage admittedly requires a different kind of affirmative action than diversity policies can deliver.67 A more vigorous form of affirmative action — effectively disallowed by the Court since Bakke — would promote opportunity for African Americans, Latinos, Asians, and other racially marginalized groups through more race-targeted means. The road to the kind of doctrinal change that would allow such policies is surely long,68 but Fisher II may hold clues for pushing equal protection in that direction. If what really matters is the kind of institutional transparency that guarantees meaningful judicial review (and likely also public accountability), then why not allow racial considerations for the purpose of redressing racial disadvantage?
As in Grutter, such a shift would necessarily require the Court to recognize a new brand of compelling interest: promoting the inclusion of racial groups that historically have been abandoned at the margins of society. With some significant social pressure, perhaps from Black Lives Matter and other quarters, the Court may well be persuaded that the country would be best served by a more inclusionary focus than the diversity rationale alone can accommodate.
This leads me to what I take to be the central point of Robinson’s Comment — that we should foster a more intentional focus on remedying educational disadvantage.69 She is right to direct our attention — not only in this Comment, but in her larger body of work — to the searing racial inequality in our nation’s public schools.70 Her scholarship justly calls attention to federal constitutional barriers, like San Antonio Independent School District v. Rodriguez,71 that disable cities and towns from securing the necessary resources for chronically underfunded schools.72 The key lesson is that equal protection has precluded the very kinds of measures that would most meaningfully advance educational opportunity for students of color while at the same time limiting the kinds of affirmative action that would compensate for significant deficiencies in public education.
I agree with Robinson, therefore, that we should focus particular attention on educationally underserved populations, including African Americans and Latinos who are uniquely burdened by the disadvantages that accompany concentrated poverty.73 But I am skeptical that we can get there through means that are strictly race-neutral, as Robinson suggests.74 The extent of the problem is so deep and so pervasive that it calls for more targeted uses of race.
Effectuating the doctrinal shift that would allow such racially specific policies, however, would require the Court to confront the assumption, now deeply embedded in equal protection, that advancing racial equality can come only at the expense of anxious and resentful whites.75 Justice Powell argued fairly explicitly in Bakke that broadening affirmative action would be racially divisive because it would cost whites, as a group, access and power.76 His influential opinion concluded that strict scrutiny should apply even to racially benign government programs, such as affirmative action, and that redressing “societal discrimination” was not a sufficiently compelling interest to justify particularized uses of race.77 In place of race-specific policies that targeted people of color, Justice Powell opted for a different path that gave birth to the modern diversity rationale that was affirmed by the Court in Grutter.78 His opinion also laid the foundation for later equal protection decisions invalidating racial classifications designed to achieve racial diversity and to avoid racial isolation and promote equitable access to public schools;79 to provide jobs for people of color in contracting at the state and local levels;80 and to increase opportunities for racial minorities to elect candidates of their choice through majority-minority voting districts.81
In order to reshape equal protection to allow more robust affirmative action, the Court and the public itself must see that the fate of our increasingly diverse country is tied in significant part to the fate of people of color.82 As recent events make clear, racial inclusion, whether under the auspices of diversity or other race-conscious policies, benefits the country and whites as a whole; only by bringing all racial groups into the social, economic, and political fold can the country hope to move forward. Affirmative action, in other words, is not counter to the interests of whites, as the Court has long assumed. Rather, it aligns with their interests directly.83
This takes me back to where this Response began, which is about how we align equal protection with the hard realities of entrenched racial inequality. As people of color become a majority of the population, it may become more self-evident to the Court that their future is this country’s future. Fisher II may be a small, but meaningful, step in that direction.
* Henry Rutgers University Professor, Professor of Law & Robert L. Carter Scholar, Rutgers Law School. I am grateful to Robin Lenhardt and to the editors of the Harvard Law Review for their insightful comments on earlier drafts of this Response.