Affirmative action had its day in the U.S. Supreme Court for the first time in nearly a decade Wednesday, as the justices heard oral arguments about whether a University of Texas policy of considering race when evaluating students for admission was constitutional.
What's at stake? The Chronicle of Higher Education has an invaluable summary (complete with a timeline), detailing the history of affirmative action in the Court and Fisher v. Texas, the case currently before the bench. Here's a quick breakdown of the facts of the case:
Abigail Fisher, a white Texas resident who applied to the University of Texas-Austin in 2008, was denied admission. (She later enrolled in and graduated from Louisiana State University). Fisher says she was illegally discriminated against because she was evaluated as part of a group of applicants in which race is a contributing (though not final) factor for admission. Texas has a Top 10 Percent Plan, which guarantees admission to any public university for any Texas resident who graduates in the top 10 percent of his or her high school class. The remaining applicants are evaluated under a rubric that includes race. Fisher, who did not qualify for the Top 10 Percent Plan, says that policy has already produced a sufficient level of diversity. (According to SCOTUSBlog's Lyle Denniston, more ethnic minorities have enrolled as a result of the plan). Therefore, she argues, the secondary level of affirmative action has led to unconstitutional discrimination. Fisher's argument lost in a U.S. District Court and Circuit Court of Appeals before coming to the Supreme Court.
The justices last heard an affirmative action case in 2003. In it, they ruled 5-4 that institutions could use race as a factor in admissions, but that it should be narrowly defined and schools should explore race-neutral alternatives. As the Chronicle points out in its summary, the Court could simply rule that the Texas policy is not narrowly defined, and therefore invalidate it, without ruling on the validity of affirmative action policies writ large. Or they could choose to toss the whole concept.
The White House has stated its support for the university's current policies (i.e. keeping some degree of affirmative action).
The consensus seems to be that the conservative block (Chief Justice John Roberts and Associate Justices Samuel Alito, Antonin Scalia and Clarence Thomas) will vote to strike down the university's policies and affirmative action as a whole. Likewise, the liberal caucus (Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor) is expected to uphold it.
Justice Elena Kagen has recused herself from the case, as she filed a brief in support of the university's position while serving as Solicitor General.
That leaves Justice Anthony Kennedy as the likely swing vote. Kennedy, who is considered a conservative but tends to be more unpredictable on social issues, sided in 2003 with the majority that upheld narrowly defined affirmative action.
SCOTUSBlog's Kevin Russell, reporting on the morning session in which Fisher's attorney argued their side of the case, said the lawyer seemed to waver when asked about whether the Court should overturn affirmative action as a whole. Ginsburg and Sotomayor alleged that, because Fisher had since graduated from college, she lacked standing in the case.
Several justices, according to Russell, also pressed Fisher's lawyer to set a bar for when a sufficient level of diversity had been reached, as the petitioners allege that Texas's 10 Percent Plan had achieved it. The attorney countered that the burden fell on the state and university to make that decision.
Recapping the afternoon's arguments, in which the university defended its policy, The Hill's Sam Baker reports that the conservative justices appeared skeptical of the idea that race should play a factor in college admissions. Alito said that affirmative action is generally understood to be helpful for those from low-income families -- but the Texas policy separates race from income. The university's attorney argued that the school's adminssions are "holistic" and race is only one part of the equation.
In his own summary of the day's argument, the New Yorker's Jeffrey Toobin, a widely respected Court watcher, said supporters gave a "tepid" defense of affirmative action, pointing out how little difference it actually made, and the conservatives seemed to seize that idea. When Solicitor General Donald Verrili, who was defending the policy, said that race was not a tiebreaker in the admisssion process, Kennedy questioned its purpose altogether.
“I thought that the whole point is that sometimes race has to be a tiebreaker and you are saying that it isn’t," Kennedy said. "Well, then, it should just go away. Then we should just say you can’t use race, don’t worry about it.”