U.S. Supreme Court Takes Another Stab at Affirmative Action

By Mark Walsh — December 09, 2015 6 min read
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The U.S. Supreme Court was deeply divided on Wednesday about the future of affirmative action in college admissions and what to do about a university plan that sometimes considers race.

“Will any holistic review ever survive?” Justice Sonia Sotomayor asked of the lawyer challenging the University of Texas at Austin plan that includes race as a factor in such a holistic admissions program for some members of each entering class.

“What unique perspective does a minority student bring to a physics class?” Chief Justice John G. Roberts Jr. asked skeptically during the arguments in Fisher v. University of Texas at Austin (Case No. 14-981) about one of the goals of the affirmative action plan, classroom diversity.

Justice Anthony M. Kennedy, perhaps the key vote in a case in which only eight justices are participating, suggested at several points that the high court would benefit from sending the case back to a trial court to develop a better factual record. This for a case in which the justices have already heard arguments before and for which thousands of pages of evidence have been introduced already.

“It does seem to me ... that the litigants, and frankly this court, have been denied the advantage and the perspective that would be gained if there would be additional fact-finding under the instructions that” the first high court decision, in the 2013 iteration of Fisher, sought to give, Kennedy said. “We’re just arguing the same case. It’s as if nothing had happened.”

The case is being watched by K-12 educators as well as the higher education world for its potential impact on any consideration of race in schools and on the pipeline from high school to college.

Both a federal district court and the U.S. Court of Appeals for the 5th Circuit, in New Orleans, have upheld UT-Austin’s plan, with the appeals court having done so again last year after the Supreme Court ordered it three terms ago to apply “strict scrutiny,” the highest constitutional standard, to the plan.

The appeals court said the plan passed muster under strict scrutiny. That is, the race-conscious plan met the compelling governmental interest of educational diversity and was narrowly tailored to achieve that interest.

Justice Antonin Scalia said that a remand would be an unfair “do-over” and that it was the university’s burden to put its best case forward from the beginning.

Bert W. Rein, the Washington lawyer representing Abigail Fisher, a white student who claims her equal-protection rights were violated when she was denied admission to UT-Austin in 2008, said much about the university’s holistic-admissions plan is “masked and hidden.”

“What are they measuring each year? They’re measuring numbers” of African-American and Latino students, he said. “They want those numbers to go up. That’s what they care about.”

Gregory G. Garre, a Washington lawyer who defended the UT-Austin plan three years ago and again on Wednesday, said the university would be fine with a remand “if there are any shortcomings the court sees,” but he sought to make the case that the plan could be upheld based on the existing record.

“Now is not the time and this is not the case to roll back student-body diversity in America,” he said.

Roberts asked Garre about the sunset provision of sorts that then-Justice Sandra Day O’Connor had suggested in her majority opinion in Grutter v. Bollinger, the 2003 decision that upheld a race-conscious holistic-admissions program at the University of Michigan law school to serve the interest of educational diversity.

“We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” O’Connor wrote.

“Are we going to hit the deadline?” Roberts asked, noting that more than 12 years had passed since the Grutter decision. “It was important in Grutter to say, look, this can’t go on forever—25 years. And when do you think your program will be done?”

“As soon as we can achieve sufficient numbers for educational benefits of diversity without taking race into account, we will no longer take race into account,” Garre said.

Justice Samuel A. Alito Jr. pressed Garre about the university’s goals for its holistic-admissions program, especially in light of the fact that many African-American and Latino students are admitted under the state’s Top Ten Percent law, in which those at the top of their high school class rankings are granted automatic admission to state universities. (The law provides for the top 7 percent to be admitted to the flagship UT-Austin campus.)

The percentage program admits many minority students from lower socioeconomic areas and from racially identifiable high schools, and the university has sought to use the holistic-admissions plan to attract more elite minority students.

“One of the things I find troubling about your argument is the suggestion that there is something deficient about the African-American students and the Hispanic students who are admitted under the top 10 percent plan,” Alito said. “It’s based on a terrible stereotyping.”

Garre questioned his premise but said, “The University of Texas applauds those students. It wants those students. ... Nevertheless, the university can look at an incoming class and determine that not all the perspectives among a particular class of students is being represented.”

Scalia sought, somewhat inartfully, to make the case for those who argue the “mismatch theory"—that some minority students admitted to selective colleges through affirmative action perform more poorly than they would in other colleges.

“There are those who contend that it does not benefit African-Americans to—to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school—a slower-track school where they do well,” Scalia said. “One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. ... I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.”

Garre replied, “Frankly, I don’t think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they’re going to inferior schools.”

U.S. Solicitor General Donald B. Verrilli Jr., also arguing for UT-Austin’s side, again sought to defend the consideration of race in admissions, stressing interests expressed by military and government leaders and business executives for racial diversity in their leadership ranks.

“When you think about what’s at stake here, the interest we have in ensuring that we have military officers who can lead a diverse military force is critical,” Verrilli said. “The interest in having law enforcement officers who are not just diverse but who can operate effectively within every racial and ethnic community in highly charged situations is critically important. Corporate America has told you that having a workforce that is able to function effectively in diverse situations is critical.”

With Justice Elena Kagan again recused from the case (presumably because she worked on it when she was U.S. solicitor general), the court must come up with five justices to overturn the 5th Circuit court’s ruling in favor of the UT-Austin plan.

A decision is expected by late June.

Photo: Abigail Fisher, a Texan who challenged the use of race in college admissions, walks with her lawyer Bert Rein outside the Supreme Court in Washington on Wednesday following oral arguments in the Supreme Court in a case that could cut back on—or even eliminate—affirmative action in higher education. (J. Scott Applewhite/AP)

A version of this news article first appeared in The School Law Blog.