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US Supreme Court seems split over affirmative action policy

In a highly contentious argument that ran well past its allotted one hour on Wednesday, the justices of the U.S. Supreme Court clashed over the constitutionality of a university policy that considers race as a factor in admissions decisions.

Three of the eight justices that heard oral arguments in Fisher v. University of Texas at Austin (Justice Elena Kagan recused herself) expressed open doubt that the policy passed muster under the Equal Protection Clause – and Justice Clarence Thomas, who didn’t speak during the arguments – could hold a similar view. Three justices seemed prepared to uphold the measure. That means the fate of the plan, as well as similar affirmative action policies across the nation, could rest with one justice: Justice Anthony M. Kennedy.

Should Kennedy side with the Court’s more conservative bloc, consisting of Chief Justice John G. Roberts, Jr., Justice Antonin G. Scalia, Justice Samuel A. Alito, Jr., and Thomas, the policy will likely be struck down 5-3. However, a vote with the more liberal members of the bench would create a 4-4 tie, allowing the 5th Circuit ruling upholding the measure to stand.

The case stems from a lawsuit filed by two white applicants to the University of Texas at Austin who were denied admission. The plaintiffs claimed that the school’s policy, which considered race as one factor in a multi-tiered and complex admissions formula, violated their equal protection rights.

The school countered that its policy, adopted after the Court’s ruling in Grutter v. Bollinger, which upheld a University of Michigan Law School policy that considered race as one factor in a holistic admissions decision-making process, was similar and was narrowly tailored enough to meet the school’s compelling interest in achieving diversity in its student body and reflecting the racial demographics of the state.

The 5th Circuit upheld the policy, holding that it was “supported by the ‘serious, good faith consideration’ required by Grutter.” An en banc panel denied rehearing.

The Supreme Court granted the rejected students’ petition for certiorari.

Defining the ‘critical mass’

As Bert W. Rein, founding partner of the Washington firm Wiley Rein, began addressing the merits of the case on the students’ behalf, Justice Ruth Bader Ginsburg instead asked him to address the issue of whether the students had standing to sue.

“If the injury is rejection by the University of Texas and [if] no matter what [they] would not have been accepted, then how is the injury caused by the affirmative action program?”

Rein said the injury was “the use of a system which denied equal treatment,” a “constitutional injury” sufficient to establish standing.

On the merits, Ginsburg pressed Rein again.

“It seems to me that this program is certainly no more aggressive than the one in Grutter,” Ginsburg said. “In fact, it’s more modest.”

“I don’t agree with that,” Rein answered. “In order to satisfy Grutter, you first have to say that you are not just using race gratuitously, but it is in the interest of producing a critical mass of otherwise underrepresented students.”

When Justice Sonia M. Sotomayor pointed to demographic data showing a modest increase in the percentage of minority students at the school, though it still lagged behind the state population percentages, Rein said: “We don’t believe that demographics are the key to underrepresentation of a critical mass.”

“You can’t seriously suggest that demographics aren’t a factor to be looked at in combination with how isolated or not isolated your student body is actually reporting itself to feel?” Sotomayor said.

As Rein began to answer, Scalia answered for him.

“Why don’t you seriously suggest that?” Scalia said. “Why don’t you seriously suggest that the demographic makeup of the state has nothing to do with whether somebody feels isolated, that if you’re in a state that is only 1 percent black that doesn’t mean that you’re not isolated so long as there’s 1 percent in the class?”

Rein wasn’t willing to go quite so far.

“What you’re looking at is [whether members] of a so-called underrepresented minority [are] isolated,” Rein said, adding that about 40 percent of the student body identified with being a member of a minority group. “Are they unable to speak out?”

When Rein focused on the fact that the university is required by law to accept the top 10 percent of graduating students at any Texas school, Kennedy, the likely swing voter, asked about the effect of the plan.

“You argue that the university’s race-conscious admission plan is not necessary to achieve a diverse student body because it admits so few people, so few minorities, and I had trouble with that reading of the brief,” Kennedy said. “I said, ‘Well, if it’s so few, then what’s the problem?’”

“That’s part of it,” Rein said. The second, he added, is the question of reasonably available alternatives.

‘Oh, this person looks 1/32nd Hispanic’

Gregory G. Garre, head of the Supreme Court practice in the Washington, D.C. office of Latham & Watkins, argued on behalf of the school that “taking race into account as only one modest factor among many for the individualized considerations of applicants” is constitutional under Grutter.

But Roberts and Scalia questioned how a policy considering race could reach its goal, even if it were constitutional.

“How do you know you have 15 percent African-American, Hispanic or 15 percent minority?” Roberts asked.

“Persons self-identify on a form,” Garre said.

“Do they have to self-identify? Scalia asked.

“They do not,” Garre said.

“So how do [school officials] decide?” Scalia asked, hammering the point. “Class by class? How do they figure out what particular classes don’t have enough? … Did they require everybody to check a box or they have somebody figure out, ‘oh, this person looks 1/32nd Hispanic’ and that’s enough?”

“They did a study,” Garre said.

“That doesn’t explain to me how they go about, classroom by classroom, deciding how many minorities there are,” Scalia said.

Roberts honed in on a separate, but related, point.

“What is the critical mass of African Americans and Hispanics at the university that you are working toward?” Roberts asked.

“We don’t have one,” Garre said.

“So how are we supposed to tell whether this plan is narrowly tailored to that goal?” Roberts asked.

“I don’t have a specific number of people, Your Honor, but it is an important part of improving the educational experience for all students at the University of Texas no matter what their race,” Garre said.

Solicitor General Donald B. Verrilli, Jr. argued as amicus in support of the school and picked up on Garre’s point.

“I agree with my friend that critical mass is not a number,” Verrilli said. “I think it would be very ill-advised to suggest that it is numerical.”

“I’m hearing a lot about what it’s not,” Roberts said. “I’d like to know what it is, because our responsibility is to decide whether this use of race is narrowly tailored to achieving, under this university’s view, critical mass.”

“We should stop calling it mass,” Scalia said.

“I agree,” Verrilli said.

“Call it a cloud or something,” Scalia said, drawing laughs.

A decision is expected later this term.


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