Pole Position: Justice Kennedy is one to watch in Wednesday's race case at #SCOTUS

Eyes on Justice Kennedy in Affirmative-Action Case
By JESS BRAVIN
Staff Reporter of THE WALL STREET JOURNAL.
10 October 2012
The Wall Street Journal Online
Copyright 2012 Dow Jones & Company, Inc. All Rights Reserved.

WASHINGTON—When the Supreme Court hears arguments Wednesday in the affirmative-action case Fisher v. University of Texas, much of the attention will fall on Justice Anthony Kennedy, whom both sides see as the deciding vote.

Chief Justice John Roberts and fellow conservatives Antonin Scalia, Clarence Thomas and Samuel Alito, based on their prior jurisprudence, are likely to find that racial preferences as practiced at the University of Texas at Austin violate the 14th Amendment's right to "equal protection of the laws," lawyers watching the case say.

On the other hand, liberal Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor are expected to find that UT's efforts to assemble a diverse freshman class are protected by a First Amendment concept of academic freedom. Justice Elena Kagan, who worked on the case as solicitor general, recused herself.

Because lower courts ruled for UT, the university would win if Justice Kennedy joins the liberal side in UT's favor, causing a 4-4 split.

"That will put a focus on Justice Kennedy," said William Leiter, a political-science professor at California State University, Long Beach, and co-author of a textbook on affirmative-action law and policy. "He has embraced the concept that you could use race as one factor" in university admissions, but only as part of a "holistic" process that focuses on evaluating individuals rather than meeting numerical targets," Mr. Leiter said.

Justice Kennedy's conclusions could determine whether colleges remain free to use racial preferences at all, and if so, under what limits.

He dissented from a 2003 decision upholding an affirmative-action program at the University of Michigan Law School. Splitting from other conservatives, however, he wrote separately to endorse racial and ethnic diversity as a "compelling interest"—the legal threshold necessary for race-conscious government actions to pass constitutional scrutiny.

But Justice Kennedy rejected the Michigan program, stating it failed the additional legal standard—established in the court's 1978 affirmative-action case, Regents of the University of California v. Bakke—that even race-conscious admissions programs treat each applicant as an individual.

"There is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity," Justice Kennedy wrote in 2003, "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."

Justice Kennedy's position gained pivotal significance following the retirement, in 2006, of Justice Sandra Day O'Connor, who wrote the Michigan case's majority opinion. Her successor, Justice Samuel Alito, has proved more skeptical of race preferences.

Edward Blum, who fights race-conscious programs and laws through his Project on Fair Representation, said the arrival of Justice Alito inspired him to set up Wednesday's test case by recruiting a plaintiff, rejected UT applicant Abigail Fisher, and underwriting the litigation.

Briefs filed by Ms. Fisher and UT each cite Justice Kennedy by name 20 times, with both sides asserting their arguments coincide with his prior opinions.

For most of its history, UT, like Texas itself, was segregated by law. It took a 1950 Supreme Court ruling to force UT to admit an African-American to its law school. The university didn't agree to accept black undergraduates until 1956.

By the 1990s, UT, like most selective colleges, had embraced affirmative action to boost minority enrollment. That came to an end after the Fifth U.S. Circuit Court of Appeals in New Orleans ruled in 1996 that UT's admissions system violated the 14th Amendment's Equal Protection Clause.

The Texas Legislature then enacted a race-neutral policy of accepting the top 10% of each Texas high school's graduating class. Because of the state's ingrained patterns of housing segregation, the new system helped preserve UT's minority enrollment. After the 2003 Michigan case, UT added a second admissions bracket—one that takes race into account—for applicants who qualified neither through the top-10% plan nor by exceptional test scores.

These race-conscious admissions, UT says, aren't necessary to ensure minority enrollment. Instead, they are designed for middle- or upper-class children of African-American and Hispanic professionals who attend more competitive schools along with white and Asian-American students.

UT contends such students, even if they aren't in the highest echelon of a suburban high school, typically have higher SAT scores than top-10% students from more troubled schools. They can help dispel stereotypes of blacks and Hispanics that can be perpetuated by the presence of those admitted through the top-10% programs, the university says.

A key question in the case is whether Justice Kennedy agrees that such a goal justifies classifying individual applicants by race, even after the university has enrolled a "critical mass," as the 2003 precedent puts it, of minority students through colorblind means.

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