[Updated (12/9/2015, 4:04 p.m.) with additional details of the oral arguments.]
The Supreme Court’s proceedings resembled a debate over educational research more than a fight over constitutional principles as the justices heard oral arguments on Wednesday in a challenge to race-conscious admissions at the University of Texas at Austin.
Several justices voiced frustration with how little new information they had before them since they had previously heard the case, two years ago. The last time around, they had ordered the U.S. Court of Appeals for the Fifth Circuit to give the Texas policy more scrutiny, to ensure that the university was not giving applicants’ race more weight than necessary. Yet both sides in the dispute are still sparring over questions related to the policy’s impact.
“We’re just arguing the same case. It’s as if nothing had happened,” complained Justice Anthony M. Kennedy, who wrote the opinion of the 7-to-1 majority the last time the court heard the case, and is regarded as a potential swing vote this time around.
He asked if the case could benefit from additional fact-finding as the lawyers debated exactly how many minority students were gaining admission to the Austin campus through its consideration of race, and whether such minority students contributed to the campus’s diversity in measurably different ways than did those admitted without their race playing a role.
Texas considers race as part of a holistic admissions process used to fill a fourth of the freshman seats at Austin. The other three-fourths are filled through a state law that guarantees admission to Texas residents in the top tenth of their high-school class. At the center of the case, Abigail Noel Fisher v. University of Texas at Austin (No. 14-981), is a dispute over whether the percent-plan yields enough diversity to render any additional consideration of applicants’ race unnecessary.
Much of Wednesday’s oral arguments revolved around two questions: What are the backgrounds of minority students admitted under the 10-percent plan? And how many minority students would gain admission through the holistic admission plan if it did not consider race as a factor?
The court’s more-conservative justices expressed frustration that they could not get clear answers from the university’s lawyer, Gregory G. Garre, nor from the U.S. solicitor general, Donald B. Verrilli Jr., who argued in support of Texas on behalf of President Obama’s administration.
“How does the university know when it has achieved its objective? At what point does it say, OK, the plan has worked?” Chief Justice John G. Roberts Jr. asked Mr. Verrilli.
25 Years
Justice Roberts noted how the majority opinion in one of the court’s last major rulings on race-conscious admissions, its 2003 Grutter v. Bollinger decision involving the University of Michigan’s law school, suggested that the nation’s colleges should be past needing race-conscious admissions in 25 years. “It was important in Grutter to say, Look, this can’t go on forever,” Justice Roberts said. “Twenty-five years.”
The Grutter majority had said the courts, in the interest of respecting academic freedom, should give deference to colleges’ judgment about whether race-conscious admissions policies were educationally necessary. But Justice Antonin Scalia said determining whether such policies are narrowly tailored to meet educational objectives requires numbers showing their real impact on enrollments, and is “not an academic judgment.”
Mr. Garre argued that diversity at Texas had “languished” in the years that it relied solely on the 10-percent plan for diversity, but he based that judgment largely on the argument that the minority students admitted based on class rank did not include enough students from integrated schools or relatively well-to-do backgrounds.
“One of the things I find troubling about your argument is the suggestion that there is something deficient about the African-American students and Hispanic students who are admitted under the top-10-percent plan,” said Justice Samuel A. Alito Jr., who described the argument as “based on a terrible stereotyping.”
When Solicitor General Verrilli argued that the maintenance of diversity in selective colleges’ enrollments serves the national interest by promoting diversity in the leadership of its military, Justice Alito asked him if he had any reason to think students admitted through the 10-percent plan would be inferior officers.
The court is expected to hand down a ruling in the case by next summer. Among its four reliably liberal voices on issues of race, Justice Elena Kagan has recused herself from hearing the case because she weighed in on Texas’ behalf in a lower court when she was solicitor general. If Texas hopes to prevail before the Supreme Court, it will have to win over at least one member of the court’s conservative bloc.
Lost Opportunities
Among the court’s more liberal members, Justice Sonia Sotomayor observed that the Austin campus’s black enrollment had nearly doubled three years after its 2004 adoption of its race-conscious admission policy. But Bert Rein, the lawyer representing Ms. Fisher, argued that it is impossible to know how many of the additional students would have been admitted without any consideration of their race, as a result of other factors such as the university’s consideration of whether applicants had overcome socioeconomic disadvantage.
Justice Ruth Bader Ginsburg argued that the 10-percent plan was obviously motivated by considerations of race, as it relies on the racial segregation of high schools to produce diversity among the campus’s freshmen. Moreover, she said, the percent-plan rewards minority students who stay in disadvantaged, heavily-minority high schools and penalizes them for seeking to attend high schools that are integrated.
Both Justice Sotomayer and Justice Ginsburg pressed Mr. Rein on the question of whether Texas was already minimizing its consideration of race by relying on the percent plan for much of its diversity. When they asked him how Texas would achieve diversity in the percent plan’s absence, and he responded that it would need to consider race in its holistic consideration of individual applicants, Justice Sotomayer said, “My God, that sounds like it’s using race more rather than less than this plan does.”
From the court’s conservative wing, Justice Roberts challenged Texas’ assertion that it needs enough minority students to have diversity in its classrooms, asking, “What unique perspective does a minority student bring to a physics class?”
Justice Scalia evoked research that suggests the long-term career prospects of minority students are harmed from academic mismatch, or their placement, through race-conscious admissions policies, in academic environments where they are likely to struggle. Asserting that elite colleges account for a disproportionately small share of the nation’s black scientists, he said, “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.”
Texas has argued that the case is moot, and should not even be before the court, because Ms. Fisher, a white applicant whom the university rejected in 2008, went on to obtain a bachelor’s degree from Louisiana State University and therefore no longer has standing to sue. Asked by Justice Ginsburg if Ms. Fisher seeks any damages from the University of Texas other than the return of her application fee, Mr. Rein said she may eventually ask to be compensated for whatever financial losses she suffered by not attending a college in her own state and not being able to go into her state’s job market with a degree from its flagship university.
“Ms. Fisher has not been admitted,” Mr. Rein said, and “she has suffered the consequences of nonadmission.”
Peter Schmidt writes about affirmative action, academic labor, and issues related to academic freedom. Contact him at peter.schmidt@chronicle.com.
