Will the Supreme Court Gut Affirmative Action?

Oral argument from the court.
Oct. 10 2012 5:58 PM

Between a Quota and a Hard Place

Is the Supreme Court ready to end affirmative action?

The University of Texas pom squad fires up the student cheering section during a Texas Longhorns football game.
The pom squad fires up the student cheering section during a football game between the Texas Longhorns and the BYU Cougars on Sept. 10, 2011 at Darrell K. Royal-Texas Memorial Stadium in Austin, Texas

Photograph by Erich Schlegel/Getty Images.

As I listened to the Supreme Court wrestle with the lion that is affirmative action this morning, I kept thinking about the enduring view of the leaders of big business, small business, and the military. In 2003, the last time race in college admissions came before the court, Wall Street, Main Street, and retired military leaders said that diversity in college is crucial, for training people of different races and ethnic backgrounds and for exposing them to each other. This time, the same constituencies are back, calling diversity in school an economic imperative. Who, then, should get to decide how admissions play out in practice—the universities or the court?

Emily Bazelon Emily Bazelon

Emily Bazelon is a Slate senior editor and the Truman Capote Fellow at Yale Law School. She is the author of Sticks and Stones.

It was Justice Stephen Breyer who framed the case of Abigail Fisher, a white applicant to the University of Texas-Austin who was denied admission four years ago, in terms of the job of the court versus the job of the schools. He pointed out that the court’s 2003 ruling, in Grutter v. Bollinger, was built to last 25 years, in the words of its author, Justice Sandra Day O’Connor. “I know time flies,” Breyer said to Fisher’s lawyer, Bert Rein. “But are you asking us to overrule” Grutter? And if so, why, given that the case “took so much time and thought and that so many people across the country rely on it?” Later, Breyer said he’d tried to figure out exactly how many universities have affirmative action plans like the one permitted in Grutter, which allowed race to be a factor in actions if schools don’t resort to quotas. He’s not sure of the exact number, but it’s a lot.

Rein won’t concede that he wants the court to overrule Grutter. He also doesn’t agree when Justice Sonia Sotomayor says, “You just want us to gut it.”* But that’s the vulnerability in Rein’s argument: It’s hard to differentiate the way in which UT takes race into account from the way the University of Michigan approaches it, something the court permitted nine years ago. Indeed, Justice Ruth Bader Ginsburg calls UT’s policy “more modest.” (We didn’t get to hear from Justice Elena Kagan today. She recused herself from the case.)  The university admits up to 80 percent of its class by automatically admitting the top 10 percent of high school graduates across the state. The rest of the spots are allotted based on academic performance and an index of personal achievement that includes a host of attributes, from essays to leadership to community service to socioeconomic status and, yes, race. It’s individualized and holistic—the magic Grutter words. No quota.

Here’s the conservative line of attack on UT, which Justices Antonin Scalia, Samuel Alito, and Chief Justice John Roberts take turns pursuing: How do you know when you’ve arrived? Grutter allowed universities to think in terms of admitting a “critical mass” of minority students. How many is that?

Sotomayor brings up a survey UT did, which showed minority students feel isolated. Breyer says that before Grutter, UT was 4 percent African-American and that today it’s 6 percent African-American, compared with 12 percent of the population of Texas. The school still has a ways to go toward admitting its fair share of black students? Well, that depends. Sotomayor thinks the demographics matter—she says Rein “can’t seriously suggest” otherwise. But when he doesn’t contradict her, Scalia does. “Why don’t you seriously suggest that the demographic makeup of the state has nothing to do” with determining whether it has a critical mass of minority students, Scalia urges.

The problem for UT is that if critical mass turns into a specific number, it “sounds an awful lot like a quota,” as Sotomayor puts it. This is a trap that Greg Garre, the lawyer for UT, tries hard not to fall into. He goes back to the university’s study of minority students’ feelings of isolation and to the school’s lower minority enrollment in earlier years. Finally, pressed, he throws out the figure of 20 percent for critical mass. He must mean this for each minority group separately, since the majority of UT’s student body is now made up of minorities, if you include Asians.

In any case, Garre spends most of his time parrying, as Scalia, Alito, and Roberts make UT’s admissions policy sound like the worst kind of intrusive bean counting. Roberts wants to know if you can check the box for being a member of a minority if you’re one quarter Japanese. Scalia asks, “If this person looks 1/32 Hispanic, is that enough?” He and Alito are especially scathing about UT’s effort to promote diversity in the classroom: How could the university ever ensure minorities were adequately represented in each course? Later, Scalia asks how many people UT employs to monitor its “ambitious racial program.”* All of this echoes Roberts’ past words, “it’s a sordid business, this divvying us up by race.” To him, it doesn’t matter whether the government is divvying people by race to benefit historically disadvantaged groups. In Roberts’ eyes, it’s still very, very bad.

The member of the court who will decide this case, Justice Anthony Kennedy, takes a while to speak and starts off sounding relatively mild. But the thrust of his question to Garre spells trouble for affirmative action policies. Kennedy is concerned that UT’s admissions policy favors some privileged minorities over poorer white people. Alito is also upset about this: He says that the whole purpose of affirmative action is to help underprivileged groups, but that UT is trying to admit wealthy minority students to achieve the sort of all-around diversity it seeks. “What if they’re in the top 1 percent,” he says. “Do they deserve a leg up over a white applicant who is absolutely average?”

This is a tough one for Garre, and then for Solicitor General Donald Verrilli, who takes UT’s side on behalf of the Obama administration. Verrilli’s answer is about “individualized review of applications that furthers the educational mission.” He brings up the hypothetical African-American fencer or the Hispanic who has mastered Greek. These students serve the education mission because they “play against stereotype,” he says.

Verrilli also tries to argue, if I understood correctly, that race never necessarily determines whether UT admits a particular applicant. Scalia is incredulous. Kennedy says he doesn’t understand the argument. Verrilli tries to explain that UT’s consideration of race “functions more subtly.” It doesn’t quite work in the courtroom, but I think what he’s after is the idea that when you’re weighing any number of personal attributes, as many parts of a whole, it’s actually not clear that one candidate’s race, as opposed to the way in which his background helps shape his life experience or leadership potential, vaults him over another candidate. Stanford law professor Richard Thompson Ford makes the point that in this sense, universities are like employers who use qualitative measures—“soft skills”—rather than objective ones when choosing among candidates to fill an opening. How exactly do you know that race, per se, is playing a defining role?

Maybe this is what Grutter is striving for: You don’t. You can have affirmative action without the rote selection of minority applicants over white ones. Except that this is not how people like Abigail Fisher will ever see it. Justice O’Connor was also in court today, resplendent in purple. If she’d been sitting on the bench, maybe the idea that race is worth considering, among many factors, would have at least 16 more years of staying power. But Alito has her seat and he doesn’t share her timeline.

Correction, Oct. 11, 2012: This article originally misspelled Justice Sonia Sotomayor's first name. (Return to the corrected sentence.) This article also originally misquoted Justice Antonin Scalia. (Return to the corrected sentence.)