Fisher v. University of Texas returns to SCOTUS: The justices can still barely talk about racial discrimination.

The Supreme Court Weighs Affirmative Action—and Proves Even It Can Barely Talk About Race

The Supreme Court Weighs Affirmative Action—and Proves Even It Can Barely Talk About Race

Oral argument from the court.
Dec. 9 2015 5:10 PM

Sesame Street Meets Groundhog Day

The Supreme Court considers affirmative action at the University of Texas—again.

Fisher v. Texas
Abigail Fisher, the plaintiff in Fisher v. Texas, speaks outside the Supreme Court in Washington on Dec. 9, 2015.

Photo by Kevin Lamarque/Reuters

If we had hoped that the Supreme Court would model a civil, respectful discussion about race in oral arguments Wednesday in its second kick at Fisher v. University of Texas—the case testing UT’s affirmative action policy—the results were mixed. While the general tone was thoughtful and nuanced, the morning ended with Justice Antonin Scalia suggesting that perhaps black students would prefer to attend “less advanced, slower-track” schools where they might feel less challenged, and Bert Rein, who represents plaintiff Abigail Fisher in the appeal, all but shouting at Justice Sonia Sotomayor in the awkward closing moments of his argument. Sotomayor finished the morning modeling pretty much exactly what we have seen in campus protests throughout the fall: shouting right back at Rein that he should maybe just let her finish her point.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

The case is known as Fisher II, because it first came to the high court in 2013, when Fisher contended that she had been refused a spot at UT-Austin, because part of its admissions program takes race into account, and students who were less qualified, but members of minority groups, were admitted in her stead. She claimed that this use of race in admissions violated the Constitution.


The University of Texas system is not your ordinary affirmative action program, however. Texas has what’s called a top 10 plan, in which the top 10 percent of all high school students automatically gain admission to the UT program; this accounts for about 75 percent of the admits. The remaining admits come from a second assessment—a “holistic” review of numerous factors ranging from leadership roles, awards, family adversity, and race. Because Texas neighborhoods and thus high schools are often segregated as a matter of practice, this allows for some minority admits but, in the UT system’s view, an insufficient number of them.

Fisher was not in the top 10 percent but claims she should have been accepted under the holistic review without the race factor. She has since graduated from Louisiana State University. The real issue Wednesday, however, isn’t simply whether universities may continue to consider race as one of many factors, holistic-style, as the court has allowed in the past. The question is what Justice Anthony Kennedy, who doesn’t like affirmative action programs but doesn’t quite not like them enough to end them altogether, is going to do this time around. In 2013 the court, voting 7–1 (Justice Elena Kagan recused herself, since she worked on this case in the Obama administration), sent the whole case back to the 5th U.S. Circuit Court of Appeals under a more exacting standard of review. The appeals court then upheld UT’s holistic review program, and Kennedy can’t quite seem to understand how we are back here again. As he puts it on Wednesday, “We’re just arguing the same case. … It’s as if nothing had happened.”

Of course what could have “happened” would have been that the appeals court would have—Macbeth-like—ended affirmative action. But curses! It still lives. And Macbeth style, there is some hand-wringing. There are plainly four votes to end affirmative action in higher education in the states that still allow it. So this is one of those cases that pits Justice Kennedy against other Justice Kennedy. Oh, the humanity.

About halfway through Rein’s presentation, Kennedy, in some exasperation, wonders if it may be better if other people decide it. He starts to toy with the project of sending it back to the trial court for a full airing of all the facts and issues. You can almost hear some of his colleagues’ eyes rolling as they consider the fact that almost half of them are over 70 and he seems to be planning on simply running out the clock.


He may quite literally plan on running out the clock. There are only 12 years left on it. When the high court upheld the University of Michigan’s law school affirmative action program in 2003, it determined that schools could not use a rigid point system to boost racial admissions but could, to promote the goal of diversity, take race into account in fuzzy, inchoate ways that we now call “holistic.” At that time, Justice Sandra Day O’Connor predicted that we could maybe put a sell-by date on race-based admissions policies. “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” she wrote. This triggers a good number of “are we there yet” questions from the back seat Wednesday morning, with Chief Justice John Roberts cheerfully asking UT’s lawyer, Greg Garre, “And when do you think your program will be done?”

Rein is in a tough position here because he is simultaneously arguing that rigid quotas and numerical formulas for racial admissions are unconstitutional—as the court has found in its prior cases—but also that unless UT has a numerical quota for racial admissions, it cannot prove it needs them and thus cannot prevail in this case. Because the court has so definitively declined to talk about hard numbers in admissions programs, we spend the bulk of the morning debating hard numbers. We revert to doing letters only when Justice Stephen Breyer begins to spell out the word race: “R-A-C-E.” It’s Sesame Street meets Groundhog Day.

Justice Ruth Bader Ginsburg hammers at Rein for contending that schools can use race as a holistic factor in admissions but cannot explain how the holistic review program could be cured to his satisfaction. Sotomayor puts it this way: “If they had to use race, how are they using it improperly?”

Rein replies that you can use the rule from Grutter v. Bollinger, the Michigan case, considering race insofar as you are “looking at every aspect of an individual and you’re trying to judge whether one or another for the last places would most benefit the class as a whole as a learning entity.”


Breyer queries whether the words critical mass of minority students means much more than “a cloud of, sort of, you don’t know what they’re talking about.” Roberts explains that under court precedent, “at some point the actual benefit of the program turns out to be not really worth the very difficult decision to allow race to be considered, if at the end of the day it generates a certain number.” Kennedy just asks Rein outright whether there is “any evidence that the holistic review being used by UT operates as a quota?” Finally Ginsburg points out that there is a real question about whether Fisher, who has already graduated, is even in a position to be granted any relief if she prevails.

Then Garre rises to defend UT. Justice Samuel Alito presses him on what’s wrong with the minority admits who get in under Texas’ 10 percent program: “They’re not dynamic. They’re not leaders. They’re not change agents. … Really it’s based on a terrible stereotyping.” When Garre tries to explain that people from different states and different background bring different perspectives to the classroom, Kennedy stops him: “But you’re the one that says race can be relevant. And then in answer to Justice Alito’s question, you say, ‘Oh, that’s stereotyping.’ ”

This is how most of the argument plays out: Talk about numbers, but don’t use numbers; talk about race, but don’t use race. “You’re stereotyping!” “No! You’re stereotyping!”

Garre tries to explain that the 10 percent plan didn’t achieve the racially diverse objectives the school wanted in the years when it was used on its own, without the second race-conscious plan. “Take 2002, for example: 272 African-Americans out of a class of 8,000,” he says. “That’s glaring racial isolation. The University of Texas concluded that was unacceptable … in 90 percent of our classrooms of the most common size there was zero or one African-American.”


Roberts stops to ask him, “What unique perspective does a minority student bring to a physics class?”

Kennedy again presses Garre on whether the case shouldn’t be sent back for a full airing of all the issues in a trial court. Then he seems to talk himself out of it. Then Scalia says—and this is an argument made in the amicus briefs in the case—that “there are those who contend that it does not benefit African-Americans 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.” He adds that one brief “pointed out that most of the black scientists in this country don’t come from schools like the University of Texas.” He concludes: “When you take the number of really competent blacks admitted to lesser schools, it turns out to be less. And—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 replies, “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.”   

Solicitor General Donald Verrilli is meant to have 10 minutes to argue on the side of UT, but the justices keep him there almost twice as long. Scalia asks him, “Do you, you think all of this won’t be necessary in another 13 years,


where we stop disadvantaging some applicants because of their race?” As Verrilli tries to answer, Scalia adds, “I think that’s too short term. What do you think? 30 years?”

Verrilli tries to conclude his remarks with a reminder that leaders of the military, police, businesses, and other fields insist that they need diverse students in higher education to promote national security and other goals. Breyer—who has been passing notes—jumps in to remind the court that in Fisher I, “the universities and elsewhere were worried that we will … kill affirmative action through a death by a thousand cuts.” He adds, “We promised in Fisher I that we wouldn’t. That opinion by seven people reflected no one’s views perfectly. But that’s what it says.”

Rein has four minutes for rebuttal, and it goes down in a cloud of awkward. Sotomayor gets reprimanded by Scalia for failing to let Rein answer a question. Rein then barks, “Can I finish?” at Ginsburg, who is asking for a page reference, evidently thinking it’s Sotomayor cutting him off again. Then Rein and Sotomayor pretty much talk over each other about which of them is stereotyping, until she grits out, “Let. Me. Finish. My Point.” And from there on it certainly seems a bit like Rein is just mansplaining the Constitution to her while they both seethe.

The morning ends as it begins: The way to stop discrimination on the basis of race, to paraphrase the chief justice, does not seem to be quite within our grasp. We can barely even talk about it, in the most sterile chamber in America. The question is whether the court really plans to be hearing Fisher VI, Fisher IX and Fisher XIII long after Fisher is filling her prescription for Lipitor. That there was no graceful way for the court (by which I mean Kennedy) to extricate itself from this lawsuit, back in 2013 and again today, feels like a pretty good metaphor. Not only are we just not there yet, but we can’t even talk openly where we are trying to go.