This is a guest post by Yen Tran, a legal fellow in the AAUP’s Washington office.
On Wednesday, I attended part of the US Supreme Court’s oral arguments in the case Fisher v. University of Texas. As a graduate of the University of Texas School of Law, a minority student, a Texas resident, and someone interested in higher education law and civil rights, I was especially interested in hearing the oral arguments in this case. I arrived at the Supreme Court around six in the morning, and I instantly wished I got there earlier; the impossibly long line wrapped from the steps of the Court to around the side of the Library of Congress across the street. Although I did not get a seat to see the entire argument (apparently the last person to get a seat arrived at four in the morning, according to an informal survey), I did see two three-minutes segments, and because I was part of the last group admitted from the rotating line, I got to observe almost a half hour of oral arguments. As a result, I was fortunate enough see the bulk of the Gregory Garre’s argument and all of Solicitor General Donald Verrilli’s argument as they defended the University of Texas admission policy, as well as Bert W. Rein’s rebuttal, who represented Abigail Fisher.
In one of the recurring themes of the afternoon, the Court grappled with what a “critical mass” of minority students is, and how universities know if they have achieved it. The term “critical mass” comes from the 2003 Supreme Court decision in Grutter, which permits universities to “enroll a ‘critical mass’ of [underrepresented] minority students” in order to achieve educational diversity, a compelling state interest. Thus, once a university has achieved a “critical mass,” it will be no longer proper to consider race in its admission policy. This begs the question, what is its logical endpoint? How do we know whether a “critical mass” is obtained without taking into account demographic goals or quotas, which are strictly forbidden? What should the standard be for universities? None of the counsel could answer these challenging questions definitively, prompting Chief Justice Roberts to remark, “Okay. I’m hearing a lot about what it’s not. I’d like to know what it is because our responsibility is to decide whether this use of race is narrowly tailored to achieving, under this University’s view, critical mass.” Justice Scalia later jested that “we should stop calling it mass” which presupposes a number, but instead “call it a cloud or something like that.”
The inability to pinpoint or define “critical mass” may persuade some justices to revise the Supreme Court holding in Grutter, which would ultimately, change how affirmative action operates in this country. As Justice Breyer thoughtfully noted, “Grutter said it would be good law for at least 25 years, and I know that time flies, but I think only nine of those years have passed.” He continued, “[W]hy overrule a case into which so much thought and effort went and so many people around the country have depended?” During Rein’s rebuttal, Abigail Fisher’s counsel stated that he was not asking the court to overrule Grutter. Justice Sotomayor quipped, “So you don’t want to overrule Grutter, you just want to gut it.” Retired Justice Sandra Day O’Connor, who wrote the majority decision in Grutter, was in the audience for the hearing.
Other tough questions that were asked focused on whether Abigail Fisher even had standing to sue, since she had to pay the $100 admission fee regardless of whether she was admitted. Moreover, the University of Texas contends that even if her race was not considered, Fisher would have been rejected. Chief Justice Roberts admonished Garre for only addressing the critical question of standing in one footnote in his brief, stating “[w]e have an obligation to consider it in every case, and what you gave us is one footnote in which you said it’s hard to see how she could establish cognizable jurisdiction.” Fisher recently graduated from Louisiana State University and is working in Austin, Texas.
Difficult questions from the justices during oral arguments are expected and are not necessarily a predictor of how they will decide, as recent history has showed. As our previous blog post noted, however, the result will likely rest on which way Justice Kennedy rules. Because Justice Kagan recused herself, if there is a 4-4 split, the Fifth Circuit decision will stand and the University of Texas undergraduate admission policy will be deemed valid.