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Is Affirmative Action in Jeopardy?

Yesterday, the United States heard a case involving affirmative action in college admissions programs. Nine years ago, the Court decided the case of Grutter v. Bollinger in 2003. In that case, they determined that race could be considered as a factor among many in college admissions. The underlying theory is that a racially diverse student body enhances the educational experience and should be a societal goal. The case heard yesterday was Fisher v. University of Texas-Austin. In the Grutter decision, there was great deference to universities and colleges in determining the parameters of those programs.

Abigail Fisher was a high school student to applied to and was denied admission to the University of Texas at Austin and contends that Texas’ policies at the time, which were somewhat race-based, denied her admission. Texas had adopted a 10% policy where if you were in the top 10% of your high school class, you were automatically granted admission to a Texas college. In fact, because some schools are predominantly black or predominantly Hispanic, the percentage of both minority groups increased in the state university system. However, it had not apparently reached a level that the university system thought adequate, so they enhanced the original 10% plan where they took other criteria- including race- into account to further boost minority enrollment. What the university system determined was that the original plan, although statistically showing an increase in minority enrollment, had failed to increase minority enrollment in certain classes or disciplines, especially the smaller classes where, they claim, diversity would have its greatest positive impact.

Complicating this issue somewhat is the issue of standing. Specifically, after Fisher was denied admission in Texas, she was admitted to LSU in neighboring Louisiana and has finished her undergraduate degree. Under some circumstances, this case would be declared moot since she no longer had a case against Texas. However, keeping the issue open was the $100 application filing fee which was never refunded. Hence, right from the beginning of the oral argument, Sotomayor brought up the issue of standing arguing, it would appear, that the case should never have been granted. Ginsburg seemed to echo these sentiments before Scalia intervened and noted that when a serious constitutional issue was involved, especially one involving the Equal Protection Clause, there is a line of cases showing that plaintiffs have standing in federal courts. More on this later when I discuss the dynamics of this case.

First, it should be mentioned that when the Court decided to take this case, many Court watchers questioned the standing issue. There was obviously the four votes to take the case since it was granted. But, the question arose as to why this case? It seemed to be an attack on Grutter which was decided a mere 9 years ago. However, in that time, Grutter’s author- Sandra Day O’Connor- had retired and was replaced by the considerably more consistently conservative Sameul Alito. Secondly, another member of Grutter’s majority- David Souter- retired and was replaced by the equally liberal Elena Kagan. But, because Kagan worked on this case as Solicitor General (the Justice Department filed a friend of the court brief in support of the Texas policy), she had to recuse herself. That set up an 8-member court to decide this case and the possibility of a tie. In the case of a 4-4 tie, the lower court decisions- which supported the Texas policy against Fisher- would stand.

From the line of questioning, it became obvious that both Sotomayor and Ginsburg and most likely Breyer would be in favor of the Texas policy. It also became clear that Roberts, Alito, Scalia and Thomas are in favor of Fisher. Thomas never asks a question during oral argument, but he was in the dissent in Grutter. That leaves only Kennedy as the deciding factor. It needs to be noted that Roberts, from questioning during oral arguments and in both majority and dissenting opinions regarding affirmative action, is not a major supporter of affirmative action in the first place. More specifically, he questions at what point do we decide that the affirmative action has reached its desired goal and, since numerical quotas are not permissible, what criteria should courts use.

The main thrust of the questioning when the state of Texas presented its case revolved around the concept of “critical mass.” Basically, this means at what point have the “goals” of the program been met? One question asked was if the black population of Texas is 18%, do we cease the program when 18% of the student body is black? Of course, Texas argued against this as it would be, in effect, a quota. Instead, they argued some amorphous concept of “minority isolation.” Under this theory, the program would cease when minority students did not “feel” isolated in campus or classroom life. This led to some interesting questioning as to how one gauges this. Do we survey minority students and when a certain amount say they don’t feel isolated do we claim victory in the program’s goals? Roberts asked some basic questions as to how ethnicity is even determined and it was conceded by self-reports on the application itself by checking the appropriate box. As Alito, Roberts and Scalia noted, a person who is one-quarter Hispanic could simply check the Hispanic box. Roberts sarcastically asked whether colleges have people enter classrooms and count the number of students who appear Hispanic, black or Asian. Incidentally, Texas argues that the increases in minority enrollment in Texas colleges is attributable to the high acceptance rate of Asian students. That is, the number of Asian students artificially makes it appear as if minority enrollment has reached its goal. They then cite that black enrollment first increased, then increased, then increased again after they enhanced the program while Hispanic enrollment has remained consistent on the positive side. That is, while arguing that the program did not use race as a primary factor for enrollment, it become increasingly obvious that the program was specifically designed to bolster black enrollment and was, in fact, race-based.

The wild card in the whole discussion was and is Justice Kennedy. He seemed to be striving to somehow retain the basic framework of Grutter, but was fishing for what determined “critical mass” and whether affirmative action programs should be open-ended. When Solicitor General Verrilli spoke, Kennedy sprung into action and seriously questioned (1) whether the programs should be open-ended, (2) whether courts should take a university’s word for it, and (3) that these programs were, at the end of the day, not race-neutral, but race-based and, therefore, rife with Equal Protection Clause implications. Furthermore, Kennedy seemed to find trouble with a line of argument that developed. Citing diversity interests, Texas argued that the educational community was bettered by not only increased minority enrollment, but then by diversity within that minority sub-population. Specifically, he, Roberts and Scalia mentioned that they believed affirmative action programs were designed to increase minority involvement, but now Texas was arguing that the program was likewise designed to attract high-income AND low-income minority students. In other words, it was if an affirmative action program within an affirmative action program had developed.

Roberts allowed the argument to go over its 1-hour time limit by another 20 minutes when Fisher’s lawyer again argued that they were not asking the Court to necessarily overrule Grutter, but to put some teeth into its limits, again based on the critical mass argument. Again, he stated that his client was “injured” under the enhancement of the 10% program since the original program had achieved its desired result- increased minority enrollment.This again led Sotomayor to raise the issue of standing which Ginsburg also joined.

It would appear from oral argument that the decision will be 5-3 finding the Texas program unconstitutional since race does not appear to be one among many factors- despite the protestations of Texas, Verrilli with support from Justice Breyer- but the primary deciding factor. However, Kennedy is generally a wild card in these cases. Verrilli realized this and his soaring rhetoric about diversity was taken from a Kennedy footnote in Grutter. Personally, it sounded and read like a cheap attempt to sway the Justice. Should Kennedy side with the liberal wing of the Court, then rest assured that this issue of standing will play a role and will be the “out” to revisit the issue with perhaps another case further down the line. If that is the case, these deadlocked cases are generally decided and announced relatively quickly. If not, the decision will be announced sometime in 2013. If we do not hear a decision within 60 days, then it is likely that it will be 5-3 in favor of Fisher and against the state of Texas.

Near the end of argument, Sotomayor seemed to get her sarcastic back up a little when she pointedly stated that Fisher may not have been asking the Court to overrule Grutter, but “to gut the decision.” The response was not to gut it, but make it more concrete so that affirmative action programs were not open-ended and simply reliant on the say-so of the program’s administrators. If the decision is 5-3, then most likely they will take pains to retain the basic premises of Grutter- the advantages of racial and ethnic diversity in education and that race can be one factor among many in achieving that goal. However, it will likely also state that once the goals of the program are achieved, that should be it. There should be no, “Well, we achieved this, so now lets micromanage the affirmative action program at the classroom level.” That, in a nutshell, is what Texas was trying to do. As Roberts stated, because blacks or Hispanics may be under-represented in Economics 201, is that cause for remedial action so that the university recruits more minority economic majors? Taken to the opposite extreme, suppose blacks are over-represented in Physical Education courses, does the college recruit white physical education majors? Do colleges recruit more males for woman studies programs? Non-Hispanics to Spanish classes? And on and on it could go. There simply needs to be a limiting principle to the overall goal, especially when the overall goal seems to have been met.

There is no secret that John Roberts has an aversion to race-based affirmative action programs. It showed during his sometimes sarcastic questioning in this case. It showed during the Ricci v. DeStafano case out of Connecticut in 2009 and the Seattle case regarding education. But, equally important is the fact that Roberts places great emphasis on precedent and is hesitant to overrule a previous decision. The happy medium is to, as Fisher’s lawyers argue, retain Grutter, but put some teeth into its limits and then standardize those teeth on the courts. It may upset the apple cart at many colleges and universities and the way they admit students, but that is the price for ensuring that other Abigail Fishers out there are not denied admission because they happen to be white.

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