Anticipation is high for the last argument before the holiday break, and one of the biggest cases of the term, Fisher v. University of Texas at Austin.
Abigail Fisher, the white student who is challenging the use of race in admissions at the university which rejected her application in 2008, is here again, as she was for the first round of arguments in her case in October 2012.
Fisher, now a twenty-five-year-old financial analyst in Austin, ended up graduating from Louisiana State University, which will figure in the arguments a little later. Her lawyer, Bert Rein of Washington, will tell the Court that the consequences of her “nonadmission” to UT-Austin, where her sister and father had attended, including having to go to “an alternative university.”
“There is certainly good information that within the state of Texas, a degree from the University of Texas has consequences and earnings down the road, and that’s measurable,” Rein will say. “And she doesn’t have that benefit.”
We don’t know whether Fisher owns a car in Austin, and if she does, whether she tools around with an LSU plate from the Texas specialty license plate program that was at issue in a Supreme Court case last Term. Such a plate is available, though, in her alma mater’s purple and yellow colors.
Here with Fisher today is Edward Blum, a UT-Austin graduate himself and the founder of the Project on Fair Representation, the group behind the challenge. He has moved the project from Washington to the Houston area. But he is in Washington this week not only for Fisher’s case but also for the other case he organized, Evenwel v. Abbott, the “one person, one vote” case that was argued Tuesday.
Also here is Gregory L. Fenves, who took over as president of UT-Austin this past June, succeeding William C. Powers Jr., who was active in defending the race-conscious admissions program. Powers stepped down at the end of the 2014-15 academic year amid questions about undue influence in admissions decisions at the flagship campus.
Fenves, wearing a tie in the orange of UT-Austin, was most recently the executive vice president and provost of the university, but before that he was dean of UT-Austin’s Cockrell School of Engineering. He may know something about attracting minority students into science programs.
Among the other luminaries in the packed courtroom this morning are Cecilia Marshall, the widow of the late Justice Thurgood Marshall; the Rev. Al Sharpton, the activist and TV personality; and Richard Kahlenberg, the Century Foundation scholar who churns out reports and op-eds arguing for the use of socioeconomic factors, rather than race, in admissions to achieve diversity.
The Court takes the bench, minus Justice Elena Kagan, who is sitting out the case again.
When Chief Justice John G. Roberts, Jr., announces the case, he explains that because it is the only one for argument today, “we intend to grant the parties ten minutes or so of extra time”; the United States, which will appear as an amicus in support of the university, will have five additional minutes.
“So Mr. Rein, no need to rush,” the Chief Justice adds.
Rein is quick to thank Roberts for the extra time, and he notes that “I didn’t rush up here to start before you invited me this time.” In 2012, Rein broke protocol by attempting to start his argument before the Chief Justice had even announced the case, prompting a mild rebuke from Roberts.
The grant of extra time does seem to give most of the argument a relaxed pace, even if it will end up with flashes of intensity and fury.
Much of the ninety-five-minute argument is indeed a retread of arguments made three years ago by the same advocates: Rein, Gregory G. Garre for UT-Austin, and Solicitor General Donald B. Verrilli Jr. for the United States.
“We’re just arguing the same case,” Justice Anthony M. Kennedy tells Rein fairly early. “It’s as if nothing had happened.”
This comes as Kennedy is wondering aloud about a possible outcome that few predicted: Remanding the case all the way to the trial court for more development of the record. It’s an idea he will seemingly retreat from later in the argument.
And while the Justices often try to reinforce each other when questioning advocates during oral argument, even when they are likely on opposite sides of the issue at hand, Justice Sonia Sotomayor takes this to a new extreme.
Garre and Justice Samuel A. Alito, Jr., were tussling over the role of Texas’s Top Ten Percent Plan, which guarantees admission to state universities to those at the top of their high school classes. Somewhat surprisingly, Sotomayor came to the aid of her colleague, rather than Garre.
“Mr. Garre, this is the fundamental problem that I think Justice Alito is pointing to, and you’re sort of talking past each other,” she says. “So maybe I’ll explain his view.”
As the courtroom laughs, she adds, “Strange, isn’t that?” Alito says, “I could – I can use the help.”
She attempts to summarize what she believes to be Alito’s view, essentially that the university didn’t work enough to see whether those admitted under the Top Ten Percent Plan provided the kind of diversity it sought. “So that’s his view, I think,” Sotomayor says.
“Well, that’s my question,” Alito says, as more laughter erupts.
The most unexpected turn, however, comes from Justice Antonin Scalia and his comments on race. After the argument, observers would debate whether he was referring to the “mismatch theory” outlined in an amicus brief by Richard Sander, a professor at UCLA, the discussion of minorities in science and engineering in the amicus brief filed by Gail Heriot and Peter S. Kirsanow, or even views on race and education expressed by Justice Clarence Thomas, most recently in his concurring opinion in the earlier iteration of this case.
Whatever the inspiration, it was the way Scalia phrases his thoughts on the topic that causes heads to turn in the courtroom.
“There are those who contend that it does not benefit African Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less advanced school, … a slower track school where they do well,” he says. “One of the briefs pointed out that that most of the black scientists in this country don’t come from schools like the University of Texas.”
As Garre seeks to interject with an answer, the Justice declines to yield. Scalia is no racist, and there is, arguably, some validity to each of the theories he is trying to propound. But neither is he politically correct, and the more he speaks, the deeper he is sinking into trouble.
“They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them,” Scalia continues. “I’m just not impressed by the fact that the University of Texas may have fewer. Maybe it ought to have fewer. And maybe … when you take more, the number of blacks, really competent blacks admitted to lesser schools, turns out to be less. And 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.”
Neither Sotomayor nor any of his other colleagues offers to help Scalia “explain his view” on this.
The argument continues for nearly another half-hour, with some more fury, and no clear resolution in sight for a case that may reach its conclusion by late June, or may yet be bouncing around for years to come.