Supreme Court Hears Arguments on Affirmative Action

Posted October 11, 2012 in Landmark Court Cases by

The United States Supreme Court Wednesday heard opinions about how race is used as a factor in admissions at a Texas university, in a case that has the potential to ban affirmative action from the college application process. In Fisher v. University of Texas, the court will decide whether Abigail Fisher was improperly denied admission to the Austin-based school because she is white.

The court has a recent precedent to consider: The justices ruled in Grutter v. Bollinger in 2003 that the University of Michigan Law School could consider race among other factors in its admissions process, as long as it wasn’t binding itself to quotas. The opinion recognized the value of schools seeking diversity in their classrooms, and noted that including a proportion of minority students is important so that individuals don’t become isolated and tokenized.

However, the composition of the court has changed with the departure of four justices since the Grutter case, including Sandra Day O’Connor, author of that ruling’s majority opinion. A more dedicated conservative block on the current court, which still includes three judges who voted against affirmative action in 2003, could strike down the UT policy or broaden their decision to ban race as a consideration for university admission in general.

Currently UT must admit students in the top 8 percent of any Texas high school, and uses race as one consideration when deciding what students to admit who fall outside that parameter. About 30 percent of the university’s freshman classes are Latino or black.


Race Above All

Jeffrey Rosen

The lines of questioning by the judges in Wednesday’s session gave clues to how each member of the court might rule, but it could be months before a final decision is rendered.

Justice Anthony Kennedy, who dissented in the Grutter ruling but is considered perhaps the only swing voter in the Fisher case, seemed critical of admissions policies that take race into consideration.  “What you’re saying,” Kennedy said to a UT attorney, “is what counts is race above all.”

On the other end of the spectrum, Justice Sonia Sotomayor questioned whether the justices should override the decisions of individual institutions. “At what point — when — do we stop deferring to the university’s judgment that race is still necessary?” she said. “That’s the bottom line of this case.”

Justice Elena Kagan recused herself, probably because she worked on the case as President Obama’s solicitor general before he appointed her to the court.


Transparent Criteria

Legal scholars across the nation have weighed in on the case. Jeffrey Rosen, a law professor at George Washington University, suggests that instead of kicking affirmative action out of higher education altogether, the justices take a more measured tack. “A more modest approach would be for the Court to require universities that use racial preferences to be transparent about their criteria,” Rosen writes. “By remanding the case with directions to the University of Texas to be transparent about the size, duration, goals, and effectiveness of its racial preferences, the liberal and conservative justices could grant university administrators, rather than unelected judges, the opportunity to offer an objective standard for measuring what constitutes a ‘critical mass’ of minority students.”

Randall Kennedy

From the Harvard University School of Law, Randall Kennedy spoke in favor of diversity. “Diversity recognizes that different people bring to the table benefit of other things and experiences,” the law professor said recently in a lecture to University of Iowa students. “I think that color-blindness metaphor is a metaphor we should drop … Because in a multi-racial society like ours, we were never, as a practical matter, going to reach that supposed goal.”

James E. Ryan from the University of Virginia Law School opines that to intervene in college admission policies would be a renunciation of conservative judicial principles. “You might love or hate affirmative action as a matter of policy,” Ryan says. “But that’s just the point: it is a policy question for the legislature, not the courts. If the Supreme Court strikes down the plan, it will be as activist a decision as any from the Warren Court and should be seen for what it is: legislating from the bench.”

Do you think race should be a factor in a university’s admission process? Share your opinion in the comments section below.

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