Affirmative Action Is in Justice Kennedy’s Hands

Many think Justice Anthony Kennedy will cast the decisive vote ending affirmative action as we know it.

On Wednesday, affirmative action will be back on the Supreme Court’s agenda when it hears oral argument in Fisher v. University of Texas, a case in which a white woman claims she was rejected from the university because of her race. Nine years after the Court ruled in Grutter v. Bollinger that the 14th Amendment’s guarantee of equal protection permits universities to consider race in admissions decisions, many think Justice Anthony Kennedy will cast the decisive vote ending affirmative action as we know it.


On the surface, this prediction seems like a safe bet. Justice Sandra Day O’Connor, author of the Grutter decision, has retired. Her replacement, Justice Samuel Alito, is a strong opponent of race-based affirmative action, as are Justices Scalia and Thomas. Chief Justice Roberts has written that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” making an Affordable Care Act-style surprise very unlikely. Justice Kennedy dissented in Grutter, arguing that in seeking a “critical mass” of underrepresented minorities the University of Michigan “subverted” the “individual assessment” of applicants required by the Constitution.

It’s arithmetic, as Bill Clinton would say. We count five justices who have signaled a willingness to overturn Grutter versus three who seem certain to vote to uphold it. One justice, Elena Kagan, is not taking part in the case. That makes for a 5-3 decision ending racial preferences.

But the question mark in this calculus is Justice Kennedy. Though he voted against the University of Michigan law school’s admissions policy, he did not reject the school’s aim to enhance the diversity of its student body. In fact, he affirmed Justice Powell’s conclusion in Bakke v. Regents that diversity is a “compelling interest” for educational institutions. His problem with the Michigan model was what he saw as its crass means of reaching that diversity:

To be constitutional, a university's compelling interest in a diverse student body must be achieved by a system where individual assessment is safeguarded through the entire process. There is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity, but an educational institution must ensure, through sufficient procedures, that each applicant receives individual consideration and that race does not become a predominant factor in the admissions decisionmaking. The Law School failed to comply with this requirement, and by no means has it carried its burden to show otherwise by the test of strict scrutiny. (emphasis added)

Justice Kennedy’s assessment of the admissions procedure in Fisher will turn on whether he believes the University of Texas rejected Abigail Fisher on the basis of a genuinely individualized assessment of the merits of her application vis-a-vis those of other applicants. If he is convinced that race played only a “modest” rather than a “predominant” factor in her rejection, he may vote to uphold the school’s policy.

In other cases involving race and schooling, Justice Kennedy has struck a similarly moderate note. In a 2007 case focusing on student assignment policies to high schools in Seattle, he emphasized the inescapability of race in policymaking considerations: “In the real world, it is regrettable to say, [colorblindness] cannot be a universal constitutional principle.” Basing student placement on race alone is wrong, he argued, but a variety of alternative strategies to deepening racial diversity are consistent with the 14th Amendment:

School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; enrollments, performance, and other statistics by race. These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible.

This passage shows that Justice Kennedy is sympathetic to the goals of those who seek diversity in higher education, but it does not (by itself) provide evidence of his willingness to uphold the Texas admissions policy. Kennedy will join the Court’s four stalwart conservatives in insisting that the University of Texas’s use of race in admissions must pass strict scrutiny  the toughest test of constitutionality, requiring that a classification by race serve a compelling government interest through narrowly tailored means. Kennedy will likely find that Texas meets the first test of strict scrutiny  the compelling interest prong  and focus his analysis on the details of how exactly the University considers race in admissions.

If he compares the two admissions policies, Kennedy should find that admissions decisions at the University of Texas use race less often, less directly and more modestly.

First, the race factor is operative for only 25 percent of the application files; the other 75 percent of applicants are admitted under Texas’s “Top Ten Percent Plan,” a race-neutral scheme devised in 1997 to increase campus diversity. Under the plan, the University accepts every student graduating in the top ten percent of his or her class, offering admission to many black and Latino students coming from high schools where these races represent a majority of the student body.

For those 25 percent of students who gain a spot outside the Ten Percent plan, Texas considers race as one factor among many to further enhance diversity. According to the brief of respondent filed by the University of Texas, race plays a “modest” role in admissions decisions and “race is considered only in an individualized and holistic fashion.” The University’s brief, in a not-so-subtle attempt to speak directly to Justice Kennedy’s central concerns, uses the word “modest” 17 times and “individualized” 29 times. Here is exactly where race fits in:

Race is one of seven components of a single factor in the PAS [Personal Achievement Score], which comprises one third of the PAI [Personal Achievement Index], which is one of two numerical values (PAI and AI) that places a student on the admissions grid, from which students are admitted race-blind in groups. In other words, race is “a factor of a factor of a factor of a factor” in UT’s holistic review. (emphasis added)

Viewed in this light, the place of race in admissions decisionmaking seems “narrow” indeed. The question, as the Petitioner’s brief points out, is whether the policy is too narrow: whether it is adequately “tailored” to the goal of increasing campus, and classroom, diversity above and beyond what the Ten Percent rule achieves. Emphasizing the modesty of the admissions policy’s use of race too heavily risks demonstrating that the policy does very little at all to enhance racial diversity.

This is the irony of both sides’ positions, and it is the delicate dance  a performance crafted just for Justice Kennedy  that will animate the Supreme Court’s chambers on Wednesday. I’ll comment on the choreography, and how Justice Kennedy seems to respond to it, in my next post.

Follow Steven Mazie on Twitter: @stevenmazie

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Political division is nothing new. Throughout American history there have been numerous flare ups in which the political arena was more than just tense but incideniary. In a letter addressed to William Hamilton in 1800, Thomas Jefferson once lamented about how an emotional fervor had swept over the populace in regards to a certain political issue at the time. It disturbed him greatly to see how these political issues seemed to seep into every area of life and even affect people's interpersonal relationships. At one point in the letter he states:

"I never considered a difference of opinion in politics, in religion, in philosophy, as cause for withdrawing from a friend."

Today, we Americans find ourselves in a similar situation, with our political environment even more splintered due to a number of factors. The advent of mass digital media, siloed identity-driven political groups, and a societal lack of understanding of basic discursive fundamentals all contribute to the problem.

Civil discourse has fallen to an all time low.

The question that the American populace needs to ask itself now is: how do we fix it?


Discursive fundamentals need to be taught to preserve free expression

In a 2017 Free Speech and Tolerance Survey by Cato, it was found that 71% of Americans believe that political correctness had silenced important discussions necessary to our society. Many have pointed to draconian university policies regarding political correctness as a contributing factor to this phenomenon.

It's a great irony that, colleges, once true bastions of free-speech, counterculture and progressiveness, have now devolved into reactionary tribal politics.

Many years ago, one could count on the fact that universities would be the first places where you could espouse and debate any controversial idea without consequence. The decline of staple subjects that deal with the wisdom of the ancients, historical reference points, and civic discourse could be to blame for this exaggerated partisanship boiling on campuses.

Young people seeking an education are given a disservice when fed biased ideology, even if such ideology is presented with the best of intentions. Politics are but one small sliver for society and the human condition at large. Universities would do well to instead teach the principles of healthy discourse and engagement across the ideological spectrum.

The fundamentals of logic, debate and the rich artistic heritage of western civilization need to be the central focus of an education. They help to create a well-rounded citizen that can deal with controversial political issues.

It has been found that in the abstract, college students generally support and endorse the first amendment, but there's a catch when it comes to actually practicing it. This was explored in a Gallup survey titled: Free Expression on Campus: What college students think about First amendment issues.

In their findings the authors state:

"The vast majority say free speech is important to democracy and favor an open learning environment that promotes the airing of a wide variety of ideas. However, the actions of some students in recent years — from milder actions such as claiming to be threatened by messages written in chalk promoting Trump's candidacy to the most extreme acts of engaging in violence to stop attempted speeches — raise issues of just how committed college students are to
upholding First Amendment ideals.

Most college students do not condone more aggressive actions to squelch speech, like violence and shouting down speakers, although there are some who do. However, students do support many policies or actions that place limits on speech, including free speech zones, speech codes and campus prohibitions on hate speech, suggesting that their commitment to free speech has limits. As one example, barely a majority think handing out literature on controversial issues is "always acceptable."

With this in mind, the problems seen on college campuses are also being seen on a whole through other pockets of society and regular everyday civic discourse. Look no further than the dreaded and cliche prospect of political discussion at Thanksgiving dinner.

Talking politics at Thanksgiving dinner

As a result of this increased tribalization of views, it's becoming increasingly more difficult to engage in polite conversation with people possessing opposing viewpoints. The authors of a recent Hidden Tribes study broke down the political "tribes" in which many find themselves in:

  • Progressive Activists: younger, highly engaged, secular, cosmopolitan, angry.
  • Traditional Liberals: older, retired, open to compromise, rational, cautious.
  • Passive Liberals: unhappy, insecure, distrustful, disillusioned.
  • Politically Disengaged: young, low income, distrustful, detached, patriotic, conspiratorial
  • Moderates: engaged, civic-minded, middle-of-the-road, pessimistic, Protestant.
  • Traditional Conservatives: religious, middle class, patriotic, moralistic.
  • Devoted Conservatives: white, retired, highly engaged, uncompromising,
    Patriotic.

Understanding these different viewpoints and the hidden tribes we may belong to will be essential in having conversations with those we disagree with. This might just come to a head when it's Thanksgiving and you have a mix of many different personalities, ages, and viewpoints.

It's interesting to note the authors found that:

"Tribe membership shows strong reliability in predicting views across different political topics."

You'll find that depending on what group you identify with, that nearly 100 percent of the time you'll believe in the same way the rest of your group constituents do.

Here are some statistics on differing viewpoints according to political party:

  • 51% of staunch liberals say it's "morally acceptable" to punch Nazis.
  • 53% of Republicans favor stripping U.S. citizenship from people who burn the American flag.
  • 51% of Democrats support a law that requires Americans use transgender people's preferred gender pronouns.
  • 65% of Republicans say NFL players should be fired if they refuse to stand for the anthem.
  • 58% of Democrats say employers should punish employees for offensive Facebook posts.
  • 47% of Republicans favor bans on building new mosques.

Understanding the fact that tribal membership indicates what you believe, can help you return to the fundamentals for proper political engagement

Here are some guidelines for civic discourse that might come in handy:

  • Avoid logical fallacies. Essentially at the core, a logical fallacy is anything that detracts from the debate and seeks to attack the person rather than the idea and stray from the topic at hand.
  • Practice inclusion and listen to who you're speaking to.
  • Have the idea that there is nothing out of bounds for inquiry or conversation once you get down to an even stronger or new perspective of whatever you were discussing.
  • Keep in mind the maxim of : Do not listen with the intent to reply. But with the intent to understand.
  • We're not trying to proselytize nor shout others down with our rhetoric, but come to understand one another again.
  • If we're tied too closely to some in-group we no longer become an individual but a clone of someone else's ideology.

Civic discourse in the divisive age

Debate and civic discourse is inherently messy. Add into the mix an ignorance of history, rabid politicization and debased political discourse, you can see that it will be very difficult in mending this discursive staple of a functional civilization.

There is still hope that this great divide can be mended, because it has to be. The Hidden Tribes authors at one point state:

"In the era of social media and partisan news outlets, America's differences have become
dangerously tribal, fueled by a culture of outrage and taking offense. For the combatants,
the other side can no longer be tolerated, and no price is too high to defeat them.
These tensions are poisoning personal relationships, consuming our politics and
putting our democracy in peril.


Once a country has become tribalized, debates about contested issues from
immigration and trade to economic management, climate change and national security,
become shaped by larger tribal identities. Policy debate gives way to tribal conflicts.
Polarization and tribalism are self-reinforcing and will likely continue to accelerate.
The work of rebuilding our fragmented society needs to start now. It extends from
re-connecting people across the lines of division in local communities all the way to
building a renewed sense of national identity: a bigger story of us."

We need to start teaching people how to approach subjects from less of an emotional or baseless educational bias or identity, especially in the event that the subject matter could be construed to be controversial or uncomfortable.

This will be the beginning of a new era of understanding, inclusion and the defeat of regressive philosophies that threaten the core of our nation and civilization.