POLITICS

Here's What You Missed At The Big, Crazy Affirmative Action Hearing

Check out the highlights from Wednesday's Supreme Court drama.
Abigail Fisher, a Texan who challenged the use of race in college admissions, walks with her lawyer Bert Rein outside the Sup
Abigail Fisher, a Texan who challenged the use of race in college admissions, walks with her lawyer Bert Rein outside the Supreme Court in Washington, Dec. 9, 2015.

WASHINGTON -- The U.S. Supreme Court on Wednesday heard nearly 90 minutes of oral arguments in a case that could permanently curtail the role of diversity in higher education.

Chief Justice John Roberts opened the session in Fisher v. University of Texas by informing the parties they would have some extra time to make their arguments -- more than the usual one-hour slot allocated in other cases. Which meant more time for potential fireworks.

And there were fireworks aplenty.

At issue is the consideration of race in admissions at the University of Texas at Austin, which for about 25 percent of its entering classes uses the applicant's racial background as one of many factors when making admission decisions.

For the other 75 percent, the school adheres to a race-neutral Top 10 Percent plan, under which top-ranking students at high schools throughout Texas are guaranteed admission. 

Here are some of the noteworthy quotes from Wednesday's hearing -- from the legal to the inspiring to the downright controversial -- and why they matter.

Justice Ruth Bader Ginsburg:

Let me ask you about the 10 Percent plan itself, because it seems to me that that is so obviously driven by one thing only, and that thing is race. It's totally dependent upon having racially segregated neighborhoods, racially segregated schools, and it operates as a disincentive for a minority student to step out of that segregated community and attempt to get an integrated education.

Ginsburg's question, which came early in the hearing, gets right at the elephant in the room -- the uncomfortable truth that UT's Top 10 Percent plan exists precisely to take care of inequality elsewhere in Texas. This is something Ginsburg herself noted in her lone dissent in the first Fisher case.

As Harvard Law Professor Randall Kennedy wrote in his 2013 book For Discrimination: Race, Affirmative Action, and the Law, the plan "implicitly but purposefully uses widespread racial separation in schooling to create the functional equivalent of racially distinct pools of candidates." As such, the Top 10 Percent plan isn't race-neutral at all.

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Bert Rein, representing Abigail Fisher, who opposes the University of Texas admissions program:

The Top 10 plan does not classify anybody by race. It addresses only standing within the Texas educational system ... It creates geographic diversity. It looks all over Texas. It doesn't distinguish between high schools. It creates socioeconomic diversity. It does have an effect, a demonstrated effect on race because a number of minorities, the type they care about, are admitted under the Top 10 program. It's not based on race.

Time and again on Wednesday, Rein -- whose client, a white student, is suing to end UT's reliance on race in admissions -- seemed to be in the uncomfortable position of defending the UT admissions program. Here, in response to Ginsburg's question above, he bends over backward to avoid conceding that the Top 10 Percent plan rests fundamentally on racial considerations.   

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Justice Sonia Sotomayor:

I fear something. I know there is an educational debate on the benefits and costs of a 10 Percent plan. I don't want to get into that debate, but I do have a worry, which is: If you're reading proof of a compelling need, or proof of a compelling need, will any holistic review ever survive? Because as I'm reading your answer, to narrowly tailor, schools have to use nonracial means of doing it. And if the 10 Percent plan is the only thing that achieves a greater number in minorities, won't every school have to use a 10 Percent plan?

A self-described "affirmative action baby," Sotomayor was very active during oral arguments -- as she was the first time the Supreme Court heard the Fisher case in 2012, and in the 2014 case that effectively upheld a Michigan ban on affirmative action. Because affirmative action fits awkwardly alongside other constitutional doctrines on race and equality, here Sotomayor seems to worry that a new rule forbidding all consideration of race would force schools nationwide to dramatically alter their existing, "holistic" plans -- which do consider race as one of several factors in the process of admissions. 

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Chief Justice John Roberts:

You're talking about the time -- [we said in a 2003 decision] that we did not expect these sort of programs to be around in 25 years, and that was 12 years ago. Are we going to hit the deadline? Is this going to be done in your view in 12 years?

Roberts here is alluding to Grutter v. Bollinger, a landmark affirmative action decision from 2003 that upheld the admissions program at the University of Michigan Law School. In that decision, Justice Sandra Day O'Connor infamously predicted that "25 years from now, the use of racial preferences will no longer be necessary to further" the only compelling interest the Supreme Court views as valid for considering race as one of many factors: reaching a "critical mass" of minority students on college campuses. Roberts seems to think that O'Connor's prediction is a fixed number, and that the clock is running out on affirmative action.

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Former U.S. Solicitor General Gregory Garre, representing the University of Texas at Austin:

Your honor, I'm not here to give you a date, but what I would say is this: There are systematic problems that... these policies are attempting to address, including the test score gap between African-Americans and Hispanics. And the record in this case overwhelmingly shows that without the addition of race, student body diversity suffered, particularly among African-Americans.

As the chief advocate for the George W. Bush administration before the Supreme Court, Garre knows how to engage the justices. And in his response to Roberts' concern about a deadline, he didn't bite.

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Justice Samuel Alito:

It's kind of the assumption that if a black student or a Hispanic student is admitted as part of the Top 10 Percent plan, it has to be because that student didn't have to compete against very many whites and Asians. In the high school class, it's a really pernicious stereotype.

This comment by Alito is more of a red herring: It obviates the reality that Texas lawmakers approved the Top 10 Percent plan to give a leg up to minorities because of segregation in other areas in the state -- housing, schooling, you name it. But his remark also underscores the long game of some affirmative action opponents: ending any kind of admissions program that doesn't rely solely on the applicant's merit. Under this view, which Alito seems to support, even the ostensibly race-neutral Top 10 Percent program would be unconstitutional.

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Justice Anthony Kennedy:

It does seem to me, as Justice Alito's question, and frankly some of the other questions have indicated, that the litigants, and frankly this court, have been denied the advantage and the perspective that would be gained if there would be additional fact-finding under the instructions that Fisher sought to give. And that just -- we're just arguing the same case.

As often happens in contentious cases, Kennedy looks poised to be the deciding vote in Fisher. Not only did he write the lead opinion in the 2013 version of this same case, but now he appears willing, as he did then, to decide the dispute narrowly: by sending it back to a lower court. Except now he seems open to the idea for "additional fact-finding," which means he'd be willing to give UT an opportunity to present more evidence of how the school's current admissions program is constitutional. If that's the end result, it would be a minor victory for affirmative action proponents. But it would also mean more litigation, and maybe even a third Supreme Court showdown. 

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Justice Antonin Scalia:

There are those who contend that it does not benefit African-Americans 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.

Plenty has been said already about Scalia's wildly inflammatory remarks. But he does point to a brief the court received -- possibly this one from UCLA Law Professor Richard Sander-- that propounds a so-called "mismatch" theory of higher education: the debunked notion that minorities who enter high-performing schools under programs like the Top Ten Percent plan fail miserably later on and have to drop out.

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Garre:

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. I think what experience shows -- at Texas, California and Michigan -- is that now is not the time and this is not the case to roll back student body diversity in America.

This is Garre calling Scalia's bluff for his comment above. But it also responds to Scalia's speculative comment that it's not "a good thing for the University of Texas to admit as many blacks possible," which misrepresents the school's position. Offered near the end of his argument before the justices, that closer was a rather poignant way for UT to rest his case: with a robust call for ongoing diversity in higher education.

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Scalia:

What is it about this program that is going to change things, so that we can stop classifying people by race?

Like Alito, Scalia supports the view that any program that gives students of color an advantage is unconstitutional. Here, Scalia is in a back-and-forth with U.S. Solicitor General Donald Verrilli about the ongoing validity of the 25-year prediction about the future of affirmative action in the Grutter case. As he said in a separate opinion for that ruling: "The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception." To him, the end of affirmative action can't come soon enough. 

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Justice Stephen Breyer:

I'm saying R-A-C-E. Race.

All the liberal justices, including Breyer, really wanted Rein to commit to saying race is never a permissible factor in any college admissions program. Ever. Rein masterfully dodged their attempts. But did he have to? After all, that's the long game behind the legal fight over affirmative action: to end it outright. Or in Scalia's words, to treat it as forbidden "government discrimination on the basis of race."

Here, Breyer goes so far as to spell out the word "race" for Rein, as if saying, "C'mon, counselor, be candid with us. What's the real endgame here? Is race ever OK?"  

Eliminating the role of race in government is very much the life mission of Edward Blum, the legal architect behind the Fisher litigation and many other high-profile cases seeking to advance a "color-blind" vision of the Constitution. 

Remember Shelby County v. Holder, which bore a hole in the Voting Rights Act of 1965? That was an Edward Blum case. How about this week's Evenwel v. Abbott, which seeks to redefine the Constitution's "one person, one vote" principle? Yes, that's an Edward Blum case, too. As a legal entrepreneur, Blum simply has a remarkable way of getting his cases before the Supreme Court. He knows what kind of court he's dealing with, including its trepidations around race and ethnicity.

By the end of June, when the Fisher case is decided, we will know to what extent race matters to the justices.

The Associated Press contributed to this report.

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