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Commentary: Thoughts on the oral argument in Fisher v. University of Texas

The blog is pleased to have reactions to today’s oral arguments from supporters of both sides.  This post has reactions from Roger Clegg, a supporter of Abigail Fisher; we will post reactions from a supporter of the university later tonight.

 Roger Clegg is president and general counsel of the Center for Equal Opportunity, which joined an amicus brief filed by the Pacific Legal Foundation in supporter of petitioner Abigail Fisher.

 First things first:  I think a majority of the Justices will find the case to be justiciable.  Justices Ginsburg and Sotomayor raised this issue, but none of the other Justices showed any interest; it was fully thrashed out at the cert. stage, and still the Court decided to grant cert.; and in its merits brief the University relegated the issue to a footnote.  (By the way, if the University really thought this was such a great argument, why didn’t it press it in the lower courts?  I don’t see it in the Fifth Circuit’s opinion, or recall it from the trial court’s ruling.)

So we will get a merits opinion.

On the merits, I see little chance that Justices Breyer, Ginsburg, or Sotomayor will vote in favor of the petitioner. But I believe a majority will strike down the University of Texas’s use of racial preferences.

Chief Justice Roberts was clearly skeptical, as were Justices Scalia and Alito, and it is hard to imagine that Justice Thomas will vote to uphold the University.

As for Justice Kennedy, he did not tip his hand.  But of course he dissented in Grutter, so it is hard to imagine that he would uphold an approach that certainly goes at least as far as Grutter did, and where it is really hard to argue that, on the facts, it did not go further than Grutter.  There was no “Top Ten Percent” plan in Grutter, nor any claim of a need for classroom (versus campus) diversity, nor any attempt to tie “critical mass” to state demographics.

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But will Grutter itself be overturned, rather than simply distinguished in one or more of the variety of ways it might be?  In particular, will the Court continue to recognize the “educational benefits” of “diversity” as a compelling interest, justifying racial preferences in university admissions?

I would have been happier if Fisher’s lawyer, Bert Rein, had made it clearer at the beginning of the argument, when asked point-blank by Justice Breyer, that such an outcome would be welcome.  His answer was not clear, and later on his opponents said he was not asking for Grutter to be overturned in this way.  But in the rebuttal at the end he added that, if Grutter must go for Fisher to win, then so be it.

Besides, what he said precisely at oral argument might not be decisive.  The petition and merits brief certainly welcome that outcome.  And even Justice Sotomayor archly said that, if he did not want to overturn Grutter, he did want to “gut” it.

And it seems unlikely that the Court will consider itself to be bound by a legal framework that is its own creation if it finds it to be unworkable – that is, inconsistent with its other jurisprudence, unmanageable as a practical matter, and pushing the Court and universities to perverse outcomes.

Which may well be what the Justices conclude, based on today’s argument.  To the extent that the oral argument today highlighted internal contradictions in the Court’s jurisprudence in this area – and it did –  that’s good news for those of us who would like to see an outright ban on racial preferences in university admissions.

It is in fact undeniable that the framework the Court has erected has some problems, and the oral argument illuminated some of those problems:

  • For example, if race is used too much, that makes it unconstitutional, but if it’s used little, this suggests that there’s no compelling reason for using it at all.
  • The critical mass must be measurable to some extent, or else the schools are given a blank check to discriminate, and it will never be clear when and if the schools reach the point at which preferences are unnecessary to achieve the critical mass.  But if it is a precise amount, then doesn’t it become a quota?
  • If schools simply take students at their word about their race or ethnicity, then they can game the system; but if they don’t, that leads to the ugly prospect of the university establishing blood quantum requirements and then enforcing them.  The fact that the University of Texas wants to have not only campuswide but also classroom diversity – a not unreasonable desire if the idea is to have plenty of interracial classroom dialogue – makes this race-policing even more cloying.
  • Likewise, there’s the problem of whether, for example, it makes sense to lump Cambodians in with Pakistanis and Filipinos in an “Asian” category.
  • If a school wants multifaceted “diversity,” then mightn’t it follow that it should give preferential treatment to wealthy African Americans, if there is a shortage of them compared to disadvantaged whites and blacks, who must therefore be disfavored?

And there’s also this problem, not mentioned at oral argument today, but noted by Justice Ginsburg in Grutter:  The Court’s understandable refusal to accept quotas, point systems, and the like has the perverse effect of encouraging admission policies that lack transparency.

Contradictions like these push the Court in one of two directions.  The first is simply to defer to the schools – to let them discriminate as much as they want.  The second is to end the charade and just disallow the continued use of racial preferences in admissions.

I don’t think there is much doubt about which of these two alternatives a majority of the Court is likely to find more appealing.

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To be sure, one senses that Justice Kennedy, like Justice O’Connor, doesn’t like racial preferences but would like to leave the door ajar for nuanced consideration of race on an individualized basis.   But so long as universities are allowed to weigh race, there will be an irresistible tendency to do so mechanically and with an eye toward achieving a predetermined racial mix; thus, while the number of schools that use racial preferences is diminishing, the weight given those preferences at the remaining schools appears to be increasing.  That tendency is partly bureaucratic and partly because of the ideological stubbornness of the school officials with whom we’re dealing.

If, on the other hand, the Court says that weighing race is not allowed, schools will instead consider an applicant’s life circumstances and perspectives – and race may even still creep into it, but at least now it will more truly be as part of the “individualized consideration” the Court demanded in Grutter and Gratz.  So, if what a Justice wants is a very limited, nuanced consideration of race – and if what he or she wants to stop is a mechanical, numbers-driven consideration of race – then the Court should tell schools to stop weighing race.  That’s the only way to get there from where we are.

Recommended Citation: Roger Clegg, Commentary: Thoughts on the oral argument in Fisher v. University of Texas, SCOTUSblog (Oct. 10, 2012, 7:20 PM),