BY GEORGE E. CURRY
WASHINGTON (NNPA) – With one supporter of affirmative action retired and another declining to participate because of a conflict of interest, the concept of affirmative action is barely hanging on by a thread in the United States Supreme Court as justices prepare to rule in a case that involved a White woman suing the University of Texas because race was a minor factor in the admissions process.
Last Wednesday, the Supreme Court heard oral arguments in Fisher v. University of Texas at Austin. Oral arguments, which usually last an hour, were extended by 19 minutes as the court examined whether the University of Texas violated the Equal Protection Clause of the 14th Amendment in considering an applicant’s race as one of many factors in its admissions decisions. The ruling is not expected to be handed down until next summer.
In 2003, in a 5-4 decision authored by Sandra Day O’Connor (Grutter v. Bollinger), the Supreme Court upheld the concept of affirmative action in college admissions with the stipulation that race-conscious programs be narrowly tailored. O’Connor, who was in the courtroom Wednesday to hear oral arguments in the Texas class, retired in 2006 and was replaced by Samuel A. Alito, an ardent opponent of affirmative action.
Another supporter of affirmative action, Justice Elena Kagan, recused herself because she had worked on the case as solicitor general. That leaves open the possibility that the court could deadlock 4-to-4. If that happens, the rulings of the two lower courts that upheld the University of Texas admissions program would be affirmed.
With the court deeply divided on affirmative action, most of the attention Wednesday centered on Justice Anthony M. Kennedy, the only conservative on the court who has expressed limited support for race-conscious remedies.
When Gregory G. Garre, an attorney for the University of Texas, said the university wanted to attract Blacks from different economic backgrounds, Kennedy said, “So what you’re saying is that what counts is race above all.”
When Garre disagreed with that interpretation, Kennedy replied, “You want underprivileged of a certain race and privileged of a certain race. So that’s race.”
Chief Justice John G. Roberts, Jr. was aggressive in his questioning of lawyers for the university, particularly on their unwillingness to define “critical mass,” the point at which people of color are sufficiently integrated into the university.
“The compelling interest you identify is attaining a critical mass of minority students at the University of Texas, but you won’t tell me what the critical mass is,” Roberts told Garre. “How am I supposed to do the job that our precedents say I should do?”
Garre was careful not to suggest a fixed percentage, evidently fearing that he would be trapped into advocating quotas, which the court strongly disapproves.
Roberts persisted, saying: “Grutter said there has to be a logical end point to your use of race. What is the logical end point? When will I know that you’ve reached a critical mass?”
In her 2003 opinion, O’Connor suggested 25 years might be a reasonable period to end the consideration of race.
Justice Stephen G. Breyer, a supporter of affirmative action, quipped on Wednesday: “Grutter said it would be good law for at least 25 years, and I know that time flies, but I think only nine of those years have passed.”
Justices Ruth Bader Ginsburg, who was on the court when Grutter was decided, and Sonia Sotomayor, who was not, emerged as the most forceful defenders of affirmative action on Wednesday.
Ginsburg said, “But it seems to me that this program is certainly no more aggressive than the one in Grutter; it’s more – in fact, more modest.”
When Bert W. Rein, an attorney for Abigail Fisher, said he was not seeking to overturn Grutter, Justice Sotomayor said, “So you don’t want to overrule Grutter, you just want to gut it.”
As usual, Clarence Thomas, the lone Black on the Supreme Court, said nothing during the proceedings.
Fisher sued the University of Texas after she was denied admission to enter the fall semester of 2008. At the time Fisher applied, the university had a three-step admission process: 1) It allotted 90 percent of its slots to Texas residents; 2) It filled nearly 90 percent of its openings in 2008 with automatic admissions for Texas residents who were in the top 10 percent of their high school class and 3) The remaining seats were filled with individualized consideration of applicants based on demonstrated leadership qualities, awards and honors, work experience, extracurricular activities, socioeconomic status, family status and responsibilities, standardized test scores and race.
Though no quantifiable score was assigned to race or any other factor, Fisher decided to invoke the consideration of race, even within that larger context, to assert that her constitutional rights had been violated. After being denied admission, Fisher enrolled in Louisiana State University. After graduating, she returned to Austin, Texas to work as a financial analyst.
Texas initiated its Top 10 percent program as a way of increasing diversity in higher education. However many predicted at the time that it would not be sufficient to increase Black enrollment.
The U.S. Commission on Civil Rights issued a report in 2003 titled, “Beyond Percentage Plans: The Challenge of Equal Opportunity in Higher Education.” It concluded: “Percentage plans alone do not improve diversity by reaching underrepresented minority groups and will only have their desired effect if affirmative action and other supplemental recruitment, admissions, and academic support programs remain in place.”
Justice Breyer noted, “Before Hopwood [another court case] and the 10 percent plan, it looked on the African American side that it averaged about 5 percent per year, really, pretty steadily. Then after Hopwood and 10 percent it went down a little bit, not a lot, but it went down to about 3 and a half percent, 4 percent, maybe. And then they introduced Grutter, and it’s back up to 5 percent.”
In its last case involving affirmative action, the court ruled 5-4 in 2003 that when narrowly tailored, race can be used in combination with other factors as part of the college admissions process. Writing for the majority in Grutter v. Bollinger, a case involving the University of Michigan Law School, Justice Sandra Day O’Connor wrote that university had a compelling interest in “obtaining the educational benefits that flow from a diverse student body.”
The court also rejected any approach that hints of quotas by ruling in a companion case that involved the University of Michigan undergraduate admissions (Gratz v. Bollinger). It said that the practice of assigning 20 points to minority students violated Equal the Protection Clause of the 14th Amendment.
In Regents of the University of California v. Bakke, the first Supreme Court case that addressed race-conscious affirmative action, the justices permitted the consideration of race in the admissions process under certain circumstances. Writing for the majority in 1978, Justice Lewis Powell said “the interest of diversity is compelling in the context of a university’s admissions program.” The court said race could be used as a “plus factor” but not as part of a rigid quota. It struck down the program at University of California-David Medical School because it was not narrowly tailored.
As was the case in Bakke and Grutter, the Fisher case is yet another example of affirmative action foes turning the 14th Amendment on its head. Adopted on July 9, 1868 as one of the Reconstruction Amendments, it required each state to provide equal protection to all people under its jurisdiction, including newly-freed slaves. The clause served as the basis for Brown v. Board of Education, the 1954 Supreme Court decision outlawing segregated public schools.
Instead of protecting African Americans, however, Whites now argue that they are an aggrieved class and need protection from programs that assist Blacks. Pages 415 and 416 of the Joint Appendix filed in the case makes clear that Fisher would not have been admitted to the fall class at the University of Texas even if she had been Black.
The Supreme Court is expected to decide the case on a narrow point.
Sotomayor asked, “At what point – when – do we stop deferring to the university’s judgment that race is still necessary? That’s the bottom line of this case.”