Following the death of Justice Scalia, some of the most prominent cases heard by the Supreme Court this term will end anticlimactically. A major challenge to public sector unions? The Court split 4–4. President Obama’s executive order on immigration? The Justices appear evenly divided. Yet another attack on the contraceptive mandate in the Affordable Care Act? Again, no obvious majority. Together these outcomes make a fairly uneventful sequel to last year’s historic term.

However, the fate of one significant case remains unclear: Fisher v. University of Texas. Fisher is a challenge to the constitutionality of affirmative action as practiced by University of Texas, and it is back at the Court for the second time in four years. In 2013, the Court ducked a decision in the case by sending it down to the Fifth Circuit Court of Appeals for further review. Undeterred, that court returned the same decision, and the Supreme Court once again decided to hear the case.

Interestingly, unlike the other blockbusters on the Court’s docket this year, Fisher will be decided by an odd number of Justices. Justice Elena Kagan has recused herself from the case, presumably because of earlier involvement with it while she was Solicitor General under Obama. This, combined with Justice Scalia’s passing, means that seven Justices will rule on the case. The Court could thus issue a majority opinion if it so chooses.

The issue at stake in Fisher is whether the affirmative action program employed by the University of Texas violates the Equal Protection Clause of the 14th Amendment to the U.S Constitution. Admissions to the University of Texas at Austin are currently determined by a two-tiered system. First, the University determines whether the applicant finished in the top 10 percent of her graduating class at a Texas high school. If so, the student is automatically admitted. Otherwise, the applicant is placed in the general applicant pool, whereby they are evaluated on the basis of academic record, extracurricular achievements, test scores, and the like. At this point, the University also considers the race of the applicant. If the applicant is a member of an underrepresented race, the University takes that into account when considering her application. Race is not determinative, of course, but does count as a vague positive mark in favor of those applicants that come from historically underrepresented backgrounds.

In Fisher, plaintiff Abigail Fisher alleges that this use of race in the admissions process violates the U.S Constitution. Fisher was rejected from the University of Texas at Austin in 2008, after just barely failing to qualify for automatic admission under the top 10 percent rule. Fisher alleges that this rejection was due to her being white and that she suffered harm from said rejection. As such, her lawyers argue that the University of Texas should be forced to abandon its system of race-conscious admissions.

In what follows, I lay out the standards by which Supreme Court Justices decide cases, such as this one, that involved race-based classifications. Specifically, I will focus on the current requirement that the government must have a compelling state interest in making these classifications for them to survive judicial review.

Today, public universities try to meet that standard by contending that they have a compelling interest in promoting diversity. Unfortunately, the courts have treated that argument with increasing skepticism in recent years, and the Supreme Court may one day reject it altogether. With this in mind, I will argue that these universities should assert a different compelling state interest to justify affirmative action and that this interest provides a more normatively desirable foundation for the Supreme Court’s jurisprudence on racial issues. The interest I am talking about is the government’s duty to mitigate the deleterious effects of state-sponsored discrimination.

The Current State of Affirmative Action Jurisprudence

The first section of the 14th Amendment to the U.S Constitution reads as follows:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The final clause of this section is known as the Equal Protection Clause. The Equal Protection clause guarantees that, in general, the state cannot treat two persons differently regarding the law when there is no legitimate reason to do so. For over 70 years, the Court has read this clause to mean that any classification made by the state on the basis of race is suspect. For such suspect classifications to be upheld as constitutional by the Supreme Court, they must survive what is known as “strict scrutiny.” Strict scrutiny is a legal test with three prongs that any race-based law must meet. As I articulated in a previous article, those prongs are as follows:

  • It must be justified by a compelling state interest. This means the law is needed to protect something essential to the health of the state. National security, for example, is generally considered a compelling state interest.
  • It must be narrowly tailored. This means that the law must be carefully written so that it only employs the “suspect classification” when absolutely necessary to meet the compelling state interest. This condition becomes significant when considering affirmative action laws. Such laws are currently considered legal because they meet the compelling state interest of creating diversity on college campuses. However, they would be illegal if they created diversity by, for example, admitting a freshman class exclusively made up of African Americans. That remedy would not be considered a “narrowly tailored” means of achieving diversity.
  • It must be the least restrictive means of meeting that state interest.This requires that there cannot exist a viable alternative method for achieving the state interest that does not employ the suspect classification. This, once again, is important when considering affirmative action: the Supreme Court has said affirmative action would be unconstitutional if there were some other way to achieve real diversity on college campuses without using it.

The University of Texas at Austin is a public institution. As such, its practices are considered to be akin to state laws in the eyes of the courts. This means that its affirmative action program is subject to strict scrutiny, and Abigail Fisher’s lawyers assert that the program fails to meet this standard.

The university claims that its program of affirmative action is both “narrowly tailored” and “the least restrictive means” of achieving a compelling state interest: fostering diversity in higher education. The Supreme Court had previously endorsed diversity as a compelling state interest in Grutter v. Bollinger, a major affirmative action case concerning the University of Michigan heard in 2003. There, a five-justice majority led by Sandra Day O’Connor worried that without affirmative action, the proportion of underrepresented minorities on college campuses would be significantly reduced. This would be a concern, both because it would deny students of all races the opportunity to interact with those different from them, and because it would threaten the military preparedness of the U.S by reducing the number of minority officers in the armed forces. With this in mind, the Supreme Court upheld Michigan’s affirmative action scheme, with the caveat that the preference given to underrepresented minorities must not produce anything resembling a “quota system.” The University of Texas at Austin now claims that its program meets the standards held out in Grutter, and thus should survive judicial review.

Against the university, Fisher argues that its affirmative action program is not “narrowly tailored.” She claims that school can ensure a sufficiently diverse class without having to give further preference to underrepresented groups because of its top 10 percent rule. Since a significant number of Texas high schools are majority-minority, Fisher reasons that the school admits a large number of minority students under the rule. This, she contends, means that the state already achieves its “compelling interest” in diversity before it even considers applicants who were not in the top 10 percent of their graduating class. She concludes that use of racial classifications at this later stage is not absolutely necessary to meet the state’s compelling interest and that the state policy which sanctions them should thus be considered too broad to survive strict scrutiny.

To many, this is a strong argument. Indeed, the Supreme Court almost accepted it the last time Fisher was at the Supreme Court. It was only the threat of a bruising dissent from Justice Sotomayor that convinced the Court’s conservative wing to back down. Now, with the Court reviewing the case for a second time, it is unlikely that the majority will be deterred by a strong dissent from the Court’s first Latina Justice. If a majority finds Fisher’s case compelling, and the Justices choose to issue an opinion with only seven Justices, affirmative action, as presently constituted, will likely be eliminated in Texas.

I do not agree with Abigail Fisher’s claims. Moreover, I think there is a stronger defense available than the one the University of Texas at Austin put forth. It is a defense that the Supreme Court has not necessarily supported in the past, but I nevertheless think it is a better rationale for affirmative action than the current justification.

Remedying Past Discrimination as a Compelling State Interest

Since the compelling state interest typically put forth for affirmative action is achieving campus diversity, American courts have felt free to reject affirmative action schemes that do more than the minimum necessary to achieve this goal. This is why the Texas program is at risk. However, if the country is honest with itself, we know the real goal when promoting affirmative action is not diversity. The purpose of affirmative action is to compensate America’s underrepresented minorities for decades of legal discrimination, the legacy of which is still strongly felt today.

For example, all reasonable Americans can accept that African-Americans have suffered from invidious discrimination in the past, and that the effects of this discrimination still resonate today. The Black unemployment rate is twice that of the white unemployment rate; Blacks are still, on average, poorer than white individuals of similar educational standing. They suffer from implicit employment discrimination, and are disproportionately targeted by the police. The roots of these conditions can be traced back to the nearly 170 years of de jure discrimination, which make it far more difficult for African Americans to achieve academic success than for white Americans. Stereotype threat also affects the test scores of these individuals, and their socioeconomic status precludes them from accessing the sorts of educational enhancement that comes from test-specific tutoring and summer enrichment programs. In short, the government’s (and to a larger extent, the nation’s) mistreatment of African-Americans has placed these individuals at a substantial disadvantage. Blacks, of course, are not the only group that has faced government sanctioned oppression. Hispanics, Asian Americans, LBGTQ individuals, and others have also been subjected to legal discrimination.

From a moral perspective, the government undoubtedly has a compelling interest in helping those who its policies have manifestly hurt. It is unfair for the government to systematically repress a group of people, and then fail to implement remunerative programs. The U.S government acknowledged that much when it offered reparations to the Japanese Americans who were interned during World War II. It should be obvious that African-Americans, who were held in slavery for the country’s first 75 years and faced legal discrimination for the next 100, deserve similar restitution. One obvious means of doing so is allowing these individuals a substantive advantage in applying to institutions of higher education. This partially fulfills the government’s extremely compelling interest in remedying past discrimination, and appropriately recognizes that this history of oppression has made academic success more difficult to achieve of African-Americans.

If providing compensation to those who the government so clearly wronged was the compelling state interest that justified affirmative action, it is clear that the University of Texas’s program would stand. While some may argue that Texas’s scheme is not the “least restrictive” means of ensuring campus diversity, it is clear that it would be the “least restrictive” manner of ensuring that underrepresented minorities receive state help in recovering from decades of discrimination. This is because changing the compelling state interest under consideration changes the methods that are appropriate to achieve it. The top 10 percent rule may ensure campus diversity, but it does not offer minorities any advantage in the application process; instead, it merely exploits the unfortunate continuation of de facto segregation in Texas high schools. As such, it cannot be considered an attempt to meet the state’s separate and compelling interest in remedying past governmental discrimination. Only explicit racial preferences in the second phase of the application process can do that.

Is it Feasible?

It is not exactly clear how the Supreme Court feels about remedying past discrimination as a compelling state interest. In the Court’s first major affirmative action case, Regents of the University of California v. Bakkea four justice bloc held that this sort of racial classification was permissible as a means of remuneration for past government oppression. However, four justices opposed this position, making the concurring opinion of Lewis Powell the deciding vote. Powell found that affirmative action could be constitutional, provided that it did not take the form of a quota system, and that it served the compelling state interest of increasing diversity in education. This position was reaffirmed by the Court in Grutter, while the Court gave no consideration in that case to whether remedying past discrimination was also a compelling state interest. With increasing diversity confirmed as a compelling interest by the Court, and the status of “remedying past discrimination” up in the air, universities defending affirmative action have generally advanced the former as their rationale for the programs. This may be the most sound legal strategy in individual cases. However, it seems clear to me that remedying past discrimination is a more morally forceful justification for preserving affirmative action, and that it would place affirmative action programs on more solid normative grounds.

It is doubtful that the legal strategy I advocate will be adopted anytime soon by defenders of affirmative action. It certainly will not play any role in Fisher. In that case, the University of Texas has only advanced diversity as its justification for affirmative action, and the justices will rule solely on the merits of that rationale. In all likelihood, the Court will resolve Fisher in one of two ways: they will either accept Fisher’s claims and rule affirmative action unconstitutional as practiced in Texas; or they will duck the case, sending it back down to a lower court for further fact-finding. This second option may be more probable, as the Court is probably uneasy about issuing a sweeping decision in a case heard by only seven justices. However, neither option will do anything to stop the slow erosion of affirmative action in this country, an erosion that will continue so long as diversity remains the only compelling interest used by universities to defending their programs.

Brett Parker, a junior studying political science, is the managing editor of Stanford Political Journal.