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Low Comedy on the High Court: Pt 2

This is the second post on the oral arguments and issues surrounding Fisher v University of Texas, a Supreme Court case which may determine the future of racial preferences in college admissions.  The first part may be found here.

So, I left off with the beginning of the pro-affirmative action argument.

Mr. Garre: It is indistinguishable in terms of how it operates in taking race into account as only one modest factor among many for the individualized considerations of applicants in their totality from plans that this Court has upheld in Grutter and plans that this Court approved in Bakke and the Harvard plan…in achieving an interest that is indisputably compelling, the university’s interest in assembling a broadly diverse student body.

So basically Garre disagrees with Rein on all points.  He references the oldest precedent on college admissions, Bakke v University of California-Davis, a decision that struck down quotas but allowed race to remain as one factor of consideration among many.  Garre argues that the UT program successfully satisfies the three part criteria of strict scrutiny that I explained in part one.  But here’s where it gets interesting (if abstruse matters of constitutional law weren’t titillating enough.)

CHIEF JUSTICE ROBERTS: Counsel, before — I need to figure out exactly what these numbers mean. Should someone who is one-quarter Hispanic check the Hispanic box or some different box?

CHIEF JUSTICE ROBERTS: Would it violate the honor code for someone who is one-eighth Hispanic and says, I identify as Hispanic, to check the Hispanic box?

CHIEF JUSTICE ROBERTS: You don’t check, in any way, the racial identification?

­JUSTICE SCALIA: Did they — 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?

Some would disagree, but I think these questions cut right to the heart of the issue, which is just how colleges determine the operational definition of classroom diversity.  Who gets to be a minority and who doesn’t?  How do colleges determine when their “compelling interest” is satisfied?  The reality of these programs in action is that they are entitlements bestowed on certain groups based on their appearance or parentage, nothing more.

CHIEF JUSTICE ROBERTS: What is that number? What is the critical mass of African Americans and Hispanics at the university that you are working toward?

MR. GARRE: Your Honor, we don’t have one. And — and this Court in Grutter -­

CHIEF JUSTICE ROBERTS: So how are we supposed to tell whether this plan is narrowly tailored to that goal?

This is a representative exchange, culled from a lengthy back-and-forth between Roberts and Garre.  Garre assiduously avoids giving Roberts a number, which would indicate the presence of an unconstitutional quota.

JUSTICE ALITO: Well, I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don’t think I’ve ever seen before.

The top 10 percent plan admits lots of African Americans — lots of Hispanics and a fair number of African Americans. But you say, well, it’s — it’s faulty because it doesn’t admit enough African Americans and Hispanics who come from privileged backgrounds. And you specifically have the example of the child of successful professionals in Dallas.

Now, that’s — that’s your argument? If you have — you have an applicant whose parents are — let’s say they’re — one of them is a partner in your law firm in Texas, another one is a part — is another corporate lawyer. They have income that puts them in the top 1 percent of earners in the country, and they have -­parents both have graduate degrees.

They deserve a leg-up against, let’s say, an Asian or a white applicant whose parents are absolutely average in terms of education and income?

MR. GARRE: No, Your Honor. And let me -­let me answer the question. First of all, the example comes almost word for word from the Harvard plan that this Court approved in Grutter and that Justice Powell held out in Bakke.

JUSTICE ALITO: Well, how can the answer to that question be no, because being an African American or being a Hispanic is a plus factor.

MR. GARRE: Because, Your Honor, our point is, is that we want minorities from different backgrounds. We go out of our way to recruit minorities from disadvantaged backgrounds.

JUSTICE KENNEDY: So what you’re saying is that what counts is race above all?

This is lengthy, but it’s pretty crucial.  Since it’s safe to assume in this instance that Anthony Kennedy is the swing vote, that final question is the best indication that we may finally see a college admissions process without affirmative action when this ruling comes down.

After Garre, comes Solicitor General Donald Virrilli. The conservative justices immediately interrogate Virrilli on an all important point: if two applicants are identical in every way, will the Hispanic or black applicant be admitted in lieu of the white or Asian?

­JUSTICE ALITO: If you have two applicants who are absolutely the same in every respect: They both come from affluent backgrounds, well-educated parents. One falls within two of the groups that are given a preference, the other doesn’t. It’s a marginal case. It’s the last — the last position available in the class. Under the Texas plan, one gets in; one doesn’t get in. Now, do you agree with that or not?

GENERAL VERRILLI: There may not be a racial preference in that situation. It’s going to depend on a holistic, individualized consideration of the applicant.

JUSTICE BREYER: All right, sir. But it is the correct answer to Justice Alito’s — if there are ever two applicants where the GPA, the test — the grades, the SA1, SA2, leadership, activities, awards, work experience, community service, family’s economic status, school’s socioeconomic status, family’s responsibility, single-parent home, languages other than English spoken at home, and SAT score relative to school’s average race, if you have a situation where those — all those things were absolutely identical, than the person would be admitted on the bounds of race.
GENERAL VIRRILLI: Not necessarily.

(Laughter)

The audience gets the joke, the ludicrousness of the argument, the necessary and incessant obfuscation of the truth of racial preferences: that some ethnic groups are more equal than others. Finally, once more and with feeling, the issue of what constitutes critical mass gets thrashed out once again.

GENERAL VIRILLI: I don’t think there is a number, and I don’t think it would be prudent for this Court to suggest that there is a number, because it would raise exactly the kind of problem that I — that I think Justice Kennedy identified in the Grutter dissent of creating hydraulic pressure towards that number.

JUSTICE SCALIA: We should probably stop calling it critical mass then, because mass, you know, assumes numbers, either in size or a certain weight.

GENERAL VERRILLI: I agree.

JUSTICE SCALIA: So we should stop calling it mass.

GENERAL VERRILLI: I agree.

JUSTICE SCALIA: Call it a cloud or something like that.
(Laughter.)

You get the sense that Supreme Court justices enjoy their work, especially when they’re in the majority.  My prediction for this case: 5-4 in favor of the plaintiff, one very tough young woman by the name of Abigail Fisher who refused to accept an unjust system.

 James Braid | University of North Carolina

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