Last week, I wrote about the upcoming Supreme Court case Fisher v. University of Texas at Austin. I recently attended an event sponsored by the ACLU, discussing the upcoming court term, including this case. There are a few unusual elements to the case that I want to talk about this week. Once again I am indebted to Dennis Parker of the ACLU’s Racial Justice Program for explaining these issues and his thoughts on them.
The first is the unusually high number of amicus briefs filed in the case, mostly in support of the university (the AAUP has signed on to one of these briefs). Other briefs on behalf of the school came from:
Sixteen members of the US Senate and sixty-six members of the House of Representatives;
Thirty-eight members of the Texas legislature;
Dozens of Fortune 100 companies;
A bipartisan group of former commissioners of the FCC;
And the United States government itself.
There were many, many more. Read the full list here. The list of interested parties on both sides show that this case is about much more than affirmative action and the college admissions process—it raises questions of what “diversity” means, and what its value is or should be in our society. These questions affect not only schools, but businesses, governments, and individuals.
As Steven Shapiro, the legal director of the ACLU, put it last week, this case makes us confront the very idea of diversity. Is “diversity” just a statistical measure of students’ races? Will we get to the desired amount of diversity by just making sure that the percentages of students of each race match up to what we want? Or rather, is diversity about the student experience—ensuring that students interact with people different from them as they go about their college careers, particularly in the classroom? If it’s the latter, then ensuring diversity in its own way would be part of a school’s academic freedom.
When this case goes before the Supreme Court on October 10, Justice Elena Kagan will not be present. She has recused herself, presumably because her work while solicitor general included working on this case. What that means is that there’s a possibility of a 4-4 split by the eight justices who do hear the case. If that happens, the lower court’s ruling will stand—a win for the University—but there will be no official ruling, and the arguments and logic of the justices will not be able to set precedent for future cases. But for supporters of affirmative action, that would be a much better result than a ruling against the university.
To even get to a 4-4 tie, one of the traditionally conservative justices (Alito, Kennedy, Roberts, Scalia, or Thomas) will have to side with the three non-recused traditionally liberal justices (Breyer, Ginsburg, or Sotomayor). As in so many cases, Justice Kennedy seems to be the most likely swing vote. Kennedy opposed the affirmative action program at the University of Michigan in 2003’s Grutter v. Bollinger decision, but Shapiro speculated that Kennedy’s reasoning was primarily based on the fact that he thought Michigan’s policy was a thinly-veiled quota system. It is very, very hard to argue that the Texas policy is a quota system, since the majority of the students they accept are accepted automatically by virtue of being in the top 10 percent of their high school class. Of course, he may oppose it for another reason.
If five or more justices decide that the Texas policy is unconstitutional, then they will have to decide the question of how much of the Texas admissions policy needs to be revised. Remember that Abigail Fisher, the student who is suing UT in this case, did not automatically get admission by being in the top 10 percent of her class. She applied as part of the secondary policy, which considers race and other factors in filling the remaining slots. It is possible that the justices could decide to keep the top 10 percent policy, but forbid the school from considering race in the secondary process. This would effectively revert the Texas policy back to where it was from 1997-2003.
Or, the justices could go farther, and throw out the entire admissions policy, arguing that even the 10 percent plan was meant to increase racial diversity, and that any attempt to increase diversity is unconstitutional. This would constitute a major setback for affirmative action, and would be surprising, since it would overturn the Grutter decision, which is still less than a decade old.
But it’s hard to guess just how the justices will decide, though it seems reasonable to me to say that the best supporters of the university can hope for is a 4-4 split (I don’t think Alito, Roberts, Scalia, or Thomas will budge on the issue, though I am not a professional court-watcher by any means). Oral arguments will be on October 10, 2012, and transcripts and audio should be available on the court’s website soon after that.