Justice Anthony Kennedy may provide the decisive swing vote on affirmative action, but his thinking on the matter is anyone’s guess. Photo credit: The Aspen Institute via Flickr Creative Commons.
BY GABRIELA PIRANA & LESLIE POLLACK — On Wednesday, October 10, the United States Supreme Court heard oral arguments for Fisher v. University of Texas at Austin. The case involves Abigail Fisher, a white female, who was denied undergraduate admission to the University of Texas at Austin. Fisher narrowly missed UT’s admissions criteria for white students–under university policy, UT-Austin accepts only students finishing the top 10 percent of their high school class. Minority students finishing slightly below the top 10 percent are given special consideration; white students apparently are not. Fisher was in the top 12 percent.
Fisher claims that the University of Texas at Austin’s consideration of race is a violation of the Equal Protection Clause of the Fourteenth Amendment. The University, predictably, has argued that their consideration of race is a narrowly formulated way of promoting diversity at the school.
In proceedings below, the United States District Court for the Western District of Texas ruled in the University’s favor, finding that its policy meets the standard set out in Grutter v. Bollinger, where the Supreme Court held that universities have a compelling interest in attaining a diverse student body. The Fifth Circuit Court of Appeals affirmed.
Much of Wednesday’s argument focused on the meaning of a “critical mass” of underrepresented minorities and the determination of when such a “critical mass” is reached on campuses. In Grutter v. Bollinger, a university admissions witness testified “critical mass” to mean a “number that encourages underrepresented minority students to participate in the classroom and not feel isolated.”
InGrutter, the Supreme Court held that the “concept of critical mass [of underrepresented minority students needed to obtain the full educational benefits of diversity] is defined by reference to the educational benefits that diversity is designed to produce.”
At Wednesday’s oral arguments, questioning by the justices largely split along the predictable conservative/ liberal line. The conservative-leaning justices proved surprisingly hostile to the notion that “critical mass” is a rational benchmark for race-based admissions policies. In fact, almost the entire oral argument period was dominated by attacks on the university’s attorney. Chief Justice John Roberts cornered counsel for the University, asking “when will we know that you’ve reached a critical mass?” Upon the University’s reply that “part of this is a judgment that . . . the educators are going to make,” Chief Justice Roberts responded, “[s]o, I see when you tell me, that’s good enough.”
On the other hand, justices falling a little farther to the left of the political spectrum concentrated their firepower on the university. In a heated exchange, Justice Breyer bluntly asked Fisher’s attorney, “I want to know whether you want us to–are you asking us to overrule Grutter?” Fisher’s attorney responded that “the problem that we’ve encountered throughout the case is there are varying understandings” of the legitimacy of the state interest in promoting diversity, depending on the route taken to achieve minority representation at universities.
In Grutter, Justice Anthony Kennedy wrote a separate opinion approving the special consideration of race in admissions. Yet the Court’s most unpredictable swing voter gave little indication of how he might decide here, save a few hints of skepticism. When Justice Samuel Alito asked about the “plus factor” added to a minority student’s application despite his or her affluent background, Justice Kennedy interjected asking counsel “[s]o what you’re saying is that what counts is race above all.”
Justice Kennedy continued on to press the university’s attorney, saying “[y]ou want underprivileged of a certain race and privileged of a certain race[,] [s]o that’s race.” Furthermore, when Justice Kennedy asked Fisher’s counsel about their admission that the University’s plan is not necessary to achieve a diverse student body because it admits so few minorities, and counsel struggled to answer, Justice Kennedy suggested his own answer to the question stating, “are you saying that you shouldn’t impose this hurt or this injury generally, for so little benefit?”
