Oral arguments in the case of Fisher vs. University of Texas just finished in front of the Supreme Court.  Fisher has the potential to overturn racial preferences at universities nationwide.  Mainstream reporting has been lazy, biased, and just plain wrong so I thought I’d give a breakdown of the oral arguments straight from Sotomayor’s mouth.  The Dramatis Personae are Bert Rein (for the side of truth and racial equality,) Gregory Garre (reverse discrimination minion #1,) Donald Verrelli (Solicitor General of the United States) and the nine justices of the Supreme Court.

As the petitioner, Rein goes first and no sooner has he spoken his first paragraph when Ginsburg and Sotomayor tag team him on the legal question of standing.  In the United States, the plaintiff must show that the law or policy will cause immediate harm.

Ginsburg: The injury — if the injury is rejection by the University of Texas the answer is no matter what, this person would not have been accepted, then how is the injury caused by the affirmative action program?

Rein: Well, Justice Ginsburg, the first injury that was before the court was the use of a system which denied equal treatment…

[In other words, the 14th amendment applies to white people too.]

Scalia: It’s — it’s been enough that there was a denial of equal protection.

Rein: That is correct, and that is our first premise.

Therefore, Rein is successful in defending his right to be in the courtroom. The case moves on to a lengthy debate over the concept of “critical mass,” a doctrine from the previous case on racial preferences, Grutter vs Bollinger, which upheld the use of race in college admissions as a “holistic factor” in evaluating applicants.

UT has two programs intended to bolster minority applicants’ chances of admission.  One is the Top 10 Percent program, which automatically grants admission to any high school student in the top ten percent of his graduating class.  Because Texas high schools are informally racially segregated (for the most part,) this policy increases minority enrollment by guaranteeing admission to students from less competitive minority-dominated high schools.  This program, ostensibly race-neutral, is not being challenged.

However, unhappy with the results of Top 10, UT instituted a second program.  Minority students at affluent high schools were struggling to get in, so economically privileged blacks and Hispanics were given a significant boost during the admissions process.  This is the program Fisher challenged as unconstitutional under the framework of critical mass laid out by Grutter.

JUSTICE KENNEDY: Well, perhaps you could summarize by saying — by telling us, from your point of view, this plan fails strict scrutiny on one or two or both levels, (a), because the objective is inappropriate or ill defined, and, (b), because of the implementation is defective. Which or both of those are you arguing?

MR. REIN: Okay. Under the category — the first category, was it a necessary means of pursuing a compelling interest, we don’t believe they’ve shown any necessity for doing what they were doing. And certainly, it — race should have been a last resort; it was a first resort. That’s, in a nutshell, that prong of it. And in order — and they failed in every respect.

If you go to narrow tailoring, what we are saying is they didn’t consider alternatives, and their treatment of, as we have pointed out, Asian Americans and Hispanics makes a — an incomprehensible distinction. They say, we don’t worry about Asians, there are a lot of Asians, it’s a demographic measure, which is a forbidden measure.


To summarize Rein’s argument: the second program failed to meet Grutter’s standard because the use of race was not narrowly focused, had no specific goal, and was used as a first resort rather than a final alternative in the absence of other credible options for increasing minority enrollment.

Next up, in Part 2 is the lawyer for UT, who faces the decidedly unsympathetic conservative bloc’s questioning with something less than clear argumentation.