WASHINGTON — The U.S. Supreme Court entertained oral arguments Wednesday morning in a case that could redefine the way affirmative action is used in the United States. In addition to challenging the fate of admissions programs nationwide, the case may also alter precedents set by the University in the landmark cases Gratz v. Bollinger and Grutter v. Bollinger.
Attorneys faced pointed questions from the justices as the sharply divided court wrestled with how to address the claim, brought forth by Abigail Fisher, a white Texan who was denied admission to the University of Texas, which uses race-based admissions practices.
During questioning, Justice Sonia Sotomayor laid out the central question facing the court as it decides whether race should be considered in university admissions.
“When do we stop deferring to the university’s judgment that race is still necessary?” Sotomayor said. “That’s the bottom line of this case.”
In 2003, the Supreme Court attempted to create a framework that would allow higher education institutions to use affirmative action within certain bounds. In Gratz v. Bollinger, the justices determined that an automatic awarding of points or preferential admissions based solely on race was unconstitutional.
However, in the companion case, Grutter v. Bollinger, Justice Sandra Day O’Connor wrote in her majority opinion that race could be considered on a holistic basis with regard to how much an individual could contribute to campus diversity.
The University of Texas automatically admits the top 10 percent of graduates from each high school in Texas. When admitting students outside this top 10 percent, the university uses race as one of its consideration factors.
Attorneys from the University of Texas, which is defending its admissions practices, faced critical questions from Justice Antonin Scalia, Justice Samuel Alito and Chief Justice John Roberts — three of the court’s conservative-leaning members.
Bert Rein, Fisher’s attorney, said he didn’t want the court to overturn Grutter v. Bollinger, but rather hopes to force the court to better define how universities can use race as a factor in admissions.
He argued that Texas’ use of affirmative action didn’t meet Grutter v. Bollinger’s requirements because its 10 percent policy provided ample amounts of diversity.
“You don’t want to overrule Grutter,” Sotomayor said. “You just want to gut it.”
When Rein was asked by Ginsberg about how the overall admissions system might be considered and if the 10 percent policy and admissions process for the remainder be separated, Rein pushed back.
“Well, I think that there would be flaws under Grutter, even if you assumed away something that can’t be assumed away, because it is a matter of Texas law, that is, there is a top 10 percent program,” Rein said.
Ginsberg then responded to Rein’s obstinacy by saying the 10 percent policy itself is less radical than the University of Michigan’s Law School admissions plan upheld by the court in 2003.
“Well, then the question is can you have both?” Ginsberg 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.”
During Rein’s testimony to the court, the attorney pointedly criticized the University of Texas’ handling of admissions targets for minorities and the lack of transparency on the issue. Rein placed much of the blame on the lack of definition provided in the Grutter decision.
“They simply ignored it,” Rein said. “They just used words and they said we’ve got to do more. So they never answered the predicate question which Grutter asks: Absent the use of race, can we generate a critical mass?”
Justice Anthony Kennedy, considered the potential swing vote in the case, didn’t appear to tip his hand during the debate, questioning both sides.
Kennedy challenged one of the University of Texas’ attorneys after he argued that the school wanted to consider race in admissions in order to attract students outside the top 10 percent of each high school’s graduating class.
“What you’re saying is what counts is race above all,” Kennedy said.
Garre, speaking after Rein’s opening argument, attempted to reconcile the University of Texas’ 10 percent policy and admission process for the remainder of the seats with the Grutter ruling. Much of the discussion was focused on the definition of a “critical mass.”
Under Grutter, a goal of affirmative action policies is to ensure minorities on college campuses do not feel isolated and voiceless. The critical mass refers to an undefined proportion of students providing each minority group proper integration and voice within the larger campus community.
“Grutter said there has to be a logical end point to your use of race.” Roberts said. “What is the logical end point? When will I know that you’ve reached a critical mass?
When Garre failed to give Roberts an objective measurement of the critical mass a frustrated Roberts demanded to know how he was supposed to arrive at his decision.
“How am I supposed to decide whether you have an environment within particular minorities who don’t feel isolated?” Roberts said. “So, I see, when you tell me, ‘that’s good enough.’”
The final testimony from Solictor General Donald Verrilli Jr., on behalf of the U.S. government and in favor of the University of Texas, was also scrutinized by the conservative jurists.
“The core of our interest is in ensuring that the nation’s universities produce graduates who are going to be effective citizens and effective leaders in an increasingly diverse society, and effective competitors in diverse global markets,” Verrilli said.
Scalia began questioning Verrilli by creating a hypothetical situation with two exactly equal candidates of different races and asking Verrilli whom he thought would be admitted. Verrilli vacillated on his answer, saying that race would not be the deciding factor and that it operated more subtly than an automatic preference given to the minority student.
In a particularly telling moment, Kennedy seemed to discount Verrilli’s argument for the University of Texas’ plan, though this instance did not as clearly define his opinion on the issue as did Roberts’s, Scalia’s and Alito’s statements.
“I thought that the whole point is that sometimes race has to be a tie-breaker and you are saying that it isn’t,” Kennedy said. “Well, then, we should just go away. Then we should just say you can’t use race, don’t worry about it.”
In a brief moment of laughter in the courtroom, Breyer mocked Scalia’s question with his own largely rhetorical question for Verrilli, implying Scalia’s scenario was ridiculous.
However, Breyer’s answer stated that in his belief, the minority candidate would then be preferred on the basis of race, if all other factors — like test scores, socioeconomic status and community service participation — were the same.
“If you have a situation where those (and) all those things were absolutely identical, than the person would be admitted on the bounds of race,” Breyer said.
The court also discussed whether or not Fisher had legitimate grounds for suing the University of Texas for damages. Rein argued that the failure of the college to afford her equal protection under the law was in itself standing for the case. The court will consider this matter during deliberations, but the decision will not likely have a significant bearing on the outcome.
The case is widely expected to be a victory for Fisher in some capacity. However, the way in which she prevails will determine the case’s legacy in future considerations.
Should the court rule that the University of Texas exceeds its mandate under Grutter v. Bollinger, and provides a better definition for how diversity goals should be achieved, affirmative action will likely endure.
Still, it’s possible that the conservative justices, who now dominate the court, could overturn the precedent set by Grutter v. Bollinger and completely eliminate the consideration of race in college admissions.
Further changing the composition of the court was Justice Elena Kagan’s decision to recuse herself from the case, due to a conflict of interest arising from working on related issues during her time as U.S. Solicitor General.
In the past, Justice Kagan has typically voted with the liberal side of the court, which makes the University of Texas’ case more difficult to win.
Should the court split 4-4, the lower circuit court’s decision that the actions of the University of Texas are legal under Grutter v. Bollinger would stand, but would not have any precedential value.
This story was updated at 9:25 p.m. on Wednesday.