On October 10, 2012, the U.S. Supreme Court heard oral arguments in Fisher v. University of Texas (UT), No. 11-345. The question before the eight justices (Justice Kagan recused herself due to prior involvement in this case before joining the Court) is whether UT’s admissions process permitting the consideration of race/ethnicity as part of a holistic evaluation of a candidate’s application is constitutional.
In recapping the oral arguments for SCOTUSblog, Lyle Denniston reported that three of the eight justices considering UT’s admissions policy are solid in providing qualified support of the policy’s use of race as a factor, while four justices seem poised to strike the policy down. However, Justice Kennedy wanted to be convinced that the program does not use race at all costs, and it appeared that he was not.
At the center of the discussion was the Court’s last major ruling on affirmative action in college admissions – Grutter v. Bollinger – in 2003. There was almost no one at the hearing thinking that Grutter would be flatly overruled, but Justice Sotomayor wondered what was on almost everybody’s mind: would it be “gutted”? At a minimum, it seemed, it would have to be rewritten and its central point – that a university can make some limited use of race until it achieves a “critical mass” in a diverse student body – may well be cast aside. Chief Justice Roberts led a determined assault on the concept, finding it far too indefinite, and the idea had no fervent champions.
As the arguments turned out, the Court seemed unwilling to accept as conclusive the academic judgment that university officials make when they fashion admission plans that take some account, however limited, of the race of the applicants. The Grutter decision was famous for its deference to universities’ calculations of the educational benefits of racial diversity, but that now appears to be a dated and perhaps even discredited approach.
Kevin Russell, reporting for SCOTUSblog on the arguments by Fisher’s attorney, said Justices Ginsburg and Sotomayor suggested Fisher lacked standing or the case had become moot because she had graduated from another school and allegedly would not have been admitted even if her race was not taken into account. Her counsel argued that the denial of an equal opportunity at a chance of admission was injury in itself, and the student should be allowed to prove that she would have been admitted or suffered other damages. Justice Scalia chimed in to remark that the Court had not required proof that a contractor would have gotten a contract under a racially discriminatory contracting scheme, suggesting the same principle provided standing here.
Justice Ginsburg pressed Fisher’s counsel to explain his position if UT had never implemented the 10% plan. Would UT be entitled to use race to achieve critical mass in that circumstances? Fisher’s counsel said no, because UT has not demonstrated that even without the 10% plan it could not achieve critical mass without the use of race.
Justice Breyer suggested that because two lower courts have found that the use of race was necessary, the Supreme Court should defer to that finding. Justice Scalia objected that the conclusion that race is necessary is not the kind of factual finding to which the Court would normally defer.
Several of the Justices attempted to get Fisher’s counsel to identify what level of diversity was necessary to reach critical mass, given that he insists that the current plan is unconstitutional because it is not necessary to achieve that goal. He insisted that it was not Fisher’s burden, but the school’s and suggested that the school’s failure to set a goal in itself rendered the plan unconstitutional because it was impossible to know whether the use of race was necessary to achieve the unnamed goal or was narrowly tailored to it. Justice Alito seemed sympathetic, announcing that he had no idea what Texas thought critical mass required.
The conservatives were relatively quiet. Justice Kennedy asked only a couple questions, which were mostly uninformative of his views. At one point he did, however, question Fisher’s argument that the use of race was unconstitutional because it only increased minority enrollment a small amount.
Justice Kennedy said this seemed to put the school in a bind — if measures increased diversity only a little, they are unconstitutional because they are unnecessary; if they increase diversity a lot, that shows the school has used race more than is necessary to achieve its interest in obtaining critical mass. However, this small diversion should not be read to indicate much about Justice Kennedy’s overall view on the case.
Meanwhile, Ralph K.M. Haurwitz, of the American-Statesman, reported that The justices peppered Gregory G. Garre, representing UT, and Bert W. Rein, representing Fisher, with a host of questions examining not only the specifics of affirmative action at UT but also the larger question of race-conscious admissions in higher education generally. It appeared from the oral arguments that Justice Kennedy, as expected, could be the Court’s deciding vote.
The more conservative justices, including Chief Justice Roberts, repeatedly asked Garre what number or percentage of minority students would constitute the “critical mass” needed to achieve UT’s diversity goals. Garre declined to provide a specific number, asserting that the concept included achieving an atmosphere in which minority students do not feel like spokespersons for their race. That did not sit well with Chief Justice Roberts. “You won’t tell me what the critical mass is,” he said. “When will I know that you’ve reached a critical mass?”
The Court’s more liberal justices challenged Rein’s arguments including his contention that the Court ought to find that UT’s consideration of race falls short of the narrow tailoring and other requirements spelled out nine years ago by the high court in Grutter, a case involving the University of Michigan.
[Editor's Note: Because of Justice Kagan's recusal, if the Court ties with a 4-4 vote on whether to uphold or strike down UT's admissions policy, the decision of the U.S. Court of Appeals for the Fifth Circuit (LA, TX, MS) finding UT's admissions policy constitutional would be upheld.
In a Sua Sponte item in August 2012, Legal Clips reported on the amicus brief filed by NSBA, along with the College Board and eleven other education organizations, with the U.S. Supreme Court in Fisher v. University of Texas. NSBA’s brief argues that the Court should avoid any dilution of Grutter that would undermine the current diversity efforts currently used throughout the spectrum of our public education system from kindergarten through post-secondary programs.]