At least some of the conservatives on the Supreme Court seemed ready to kill affirmative action in public universities during Wednesday’s arguments on the University of Texas at Austin’s program, which already has been upheld three times in lower courts.
The conservative justices used the case to cast doubt on affirmative action policies in general, ranging from the suggestion that African-Americans were being hurt by being sent to schools with classes “too fast for them,” to questioning the benefit of having a minority in one’s physics class.
The case at hand is Fisher v. University of Texas-Austin, and it was brought by a white woman, Abigail Fisher, who was rejected from the university in 2008. The Supreme Court already reviewed the case once before, only to send it back in 2013 to an appeals court that favored UT for review under a higher standard. That court then upheld the policy once again.
What makes Fisher’s case complicated is that UT already instituted a race-neutral admissions program, which admits about three-quarters of its students, in response to a 1996 appeals court decision against affirmative action. Under the program, Texas high school students who graduate in the top 10 percent of their class are automatically accepted to UT. Fisher did not land in the top 10 percent of her high school class, so she is suing on the basis of the admissions program that admits the remainder of the university’s student body. That program uses a qualitative “holistic” review that considers race among other factors, which Fisher says is unconstitutional—even though the Supreme Court upheld a similar system in 2003.
The high court’s liberal justices defended UT’s system on Wednesday and appeared committed to preserving affirmative action at large. (Justice Elena Kagan had recused herself the case, having participated in it in her previous career as a lawyer for the government.) But some of the following arguments put forth by their conservative counterparts suggest the practice could still be very much in jeopardy.
In upholding affirmative action in 2003, the Supreme Court established that public universities have a compelling interest in creating a diverse student body. Nevertheless, Chief Justice John Roberts seemed to question why diversity in the classroom was important to a university.
“What unique perspective does a minority student bring to a physics class?” he asked Gregory Garre, the attorney representing the University of Texas.
UT’s quantitative, 10-percent program may be race-neutral on its face, but it actually was created to improve diversity since many schools in Texas’ still-segregated education system are majority black or hispanic. The school only added race to the factors considered in the holistic review program in 2004, after the UT determined quantitive program wasn’t able to meet the university’s diversity goals on its own.
Justice Sonia Sotomayor pointed out that the percentage of black students admitted by holistic review about doubled in the four years after the university added race as a factor. By 2008, 20 percent of black students at the university had been offered by admission through the holistic program, she said.
But this evidence was not enough for Justice Samuel Alito, who pressed the university’s attorneys repeatedly to explain why the 10-percent program alone wasn’t enough to ensure diversity. He demanded to know, specifically, which minority students would not have been admitted by the holistic program without the consideration of race as a factor. When Garre could not give an exact number, Alito argued the system was based on “terrible stereotyping” because it suggested minorities coming through the top 10 program weren’t good enough.
“It’s kind of the assumption that if the—if a student—if a black student or a Hispanic student is admitted as part of the top 10-percent plan, it has to be because that student didn’t have to compete against very many whites and— and Asians,” he said.
Garre rejected the idea that the holistic program was stereotyping. He argued that “the university can look at an incoming class and determine that not all the perspectives among a particular class of students is being represented.”
When Garre brought up the low numbers of minority students the university was admitting before race was considered as a factor, Roberts shifted the conversation and grilled Garre on the timeline the school had for achieving its goal of diversity.
“Grutter said that we did not expect these sort of programs to be around in 25 years, and that was 12 years ago,” Roberts said, referring to the 2003 Supreme Court decision that upheld affirmative action. “Are we going to hit the deadline? Is this going to be done on—in your view in 12 years?
In response, Garre pointed to the systemic issues that the affirmative action policy sought to address, like the racial test score gap. But Roberts insisted that the program needed to be temporary and asked Garre: “When do you think your program will be done?”
Declining to specify a timeline, Garre responded: “As soon as we—we can achieve the same—sufficient numbers for the educational benefits of diversity without taking race into account, we will no longer take race into account.”
Justice Antonin Scalia argued that affirmative action programs were hurting black students by sending them to schools that were too advanced for them.
He pointed to those who “contend 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 less—a slower-track school where they do well.”
U.S. Solicitor General Donald Verrilli, who was there for the federal government arguing in support of UT, had a brief opportunity to respond to that suggestion idea before his time was up.
“If you look at the academic performance of holistic minority admits versus the top 10 percent admits, over time, they—they fare better,” he said. “And, 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.”
Trying to use this case to dismantle affirmative action poses some problems for the conservative justices. For one, there is the question of Fisher’s standing because she has already graduated from another college, which Justice Ruth Bader Ginsburg touched on.
Justice Stephen Breyer also floated the idea that the case should be sent back to a lower court again to include new evidence in consideration, which Justice Anthony Kennedy seemed at least somewhat open to.
”We’re just arguing the same case,” Kennedy said, referring to the last time the high court debated Fisher. “It’s as if nothing had happened.”
A decision in Fisher v. University of Texas-Austin is expected by the end of the court’s term next June.
TPM illustration by Christine Frapech. Images via AP.