Though the court’s most conservative justices are all on the record being deeply skeptical of affirmative action, it was Justice Antonin Scalia who raised eyebrows Wednesday, as the court heard yet another case challenging a race-conscious policy.
“There are those who contend that it does not benefit African-Americans to — 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 less — a slower-track school where they do well,” Scalia said. “One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.” He added, “I don’t think it stands to reason that it is a good thing for the University of Texas to admit as many blacks as possible.”
Gregory Garre, arguing on behalf of Texas, replied that the court had previously rejected such arguments, and that the record shows that the “holistic minority admits” actually fare better than the top 10% admits. “And, frankly, I don’t think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they’re going to inferior schools.”
The reference to Jim Crow-era separate but equal doctrine was unmistakable. Garre added, “Now is not the time and this is not the case to roll back student body diversity in America.”
If Justice Anthony Kennedy’s uncertainty holds, now may not be the time after all.
Kennedy has had a long time to consider the case of Abigail Fisher, the white woman who claims she was denied admission to the University of Texas because of her race, despite the fact that a lower court found she wouldn’t have been admitted regardless of her race. This is the second time her case has come to the court, and it has been seven years in the making.
But in oral argument in the case Wednesday, the tiebreaker justice seemed indecisive, implying that he didn’t have enough information yet about whether the University of Texas had done everything it could do ensure its admissions plan is constitutional.
“We’re just arguing the same case,” he said. “It’s as if nothing had happened.”
Kennedy suggested that “additional fact-finding” by a lower court might help. That could mean yet another trip back to the Supreme Court for him to agonize again over whether the University Texas has complied with the constitution in its consideration of race.
The university currently admits three quarters of its class by automatically offering admission to the top 10% of Texas high school students, which indirectly supplies some diversity, and race is one of a list of factors considered in the “holistic” process used to admit the rest, along with a score calculated from other academic metrics. Fisher was not in the top 10% of her class, and her academic score was too low to have made cut in the holistic process. The university argued that her case was moot this second time around, because she has already graduated from Louisiana State University.
But the justices did not even discuss whether Fisher had standing to sue on Wednesday. Instead, they argued along long-drawn battle lines. The liberals worked to poke holes in the argument that Texas cannot put race on the list of holistic factors. Justice Ruth Bader Ginsburg made the same point she had made the first time Fisher came to the court, which is that the supposedly “race-neutral” process of admitting the top ten percent, which isn’t being challenged in this case, isn’t race-neutral at all, because it makes virtue out of a long history of school and housing segregation and discrimination. Justice Elena Kagan didn’t say a word, because she has recused herself, having worked on the case as solicitor general. Justice Sonia Sotomayor fiercely challenged Fisher’s attorneys.
Meanwhile, three of the four most conservative members of the court reiterated that they oppose affirmative action and would overturn the court’s precedent that it is allowed as a last resort to promote educational diversity. Chief Justice John Roberts repeatedly asked when remedies to racial discrimination would no longer be needed. (Judging from his past decisions, he believes the time is now.) Justice Samuel Alito tried to argue that advocates for affirmative action are themselves making racist or condescending judgments.
Justice Stephen Breyer, a Clinton appointee, spelled out what many were thinking: Would the court diverge from the last time it heard the case, and is it just a matter of time before affirmative action in public education is a thing of the past? The briefs, he said, “suggest that people in the universities and elsewhere are worried that we will, to use your colleague’s expression, kill affirmative action through a death by a thousand cuts. We promised in Fisher I that we wouldn’t.”
As for Fisher II, we’ll have to wait until June.