By Marilynn Schuyler, AAAA Region III Director, Schuyler Affirmative Action Practice
October 10, 2012
Attorneys on both sides were peppered with questions from the Justices almost immediately after they began their opening statements. All of the Justices had questions for both sides of the issue, except Justice Kagen, who recused herself because she previously worked on the case, and Justice Thomas, who kept to his tradition of remaining silent.
The first question came from Justice Ginsburg who asked about “standing” – whether the plaintiff, Ms. Fisher, actually sustained an injury and whether the case is now moot. “Denial of her Constitutional right to Equal Protection under the law,” was the response. From there we proceeded to the substance of the case.
The most difficult question that was posed to both sides was, “How much is enough?”; How do you know when you have achieved “critical mass” and would no longer need to consider race in a holistic evaluation? Justice Breyer asked Fisher’s attorney, “What precisely is it that Grutter required that is not satisfied here?” The Plaintiff’s case centers around the idea that the 10% rule provides enough diversity, thus no further measures are needed.
The University of Texas established the holistic approach after the Grutter decision to try to attain a critical mass of minority students in individual programs. Several Justices tried to pin down exactly what “success” would look like -- how would we know when critical mass was achieved? The answer is necessarily subjective, because quotas are illegal. Counsel for UT-Austin described the various methods for making this determination – composition of classrooms, responses from student surveys, etc.
Justice Kennedy is viewed as the swing vote, and he had challenging questions for both sides. To Fisher’s Counsel, “If UT’s plan is not necessary, because it admits so few minorities, then what exactly is the harm to nonminorities?” To UT’s Counsel he asked whether race is a “tiebreaker,” and expressed concern about more “privileged” minorities taking spots that could be used by less privileged nonminorities.
There was one point about which the Justices and Counsel on both sides of the argument seem to agree: that there are educational benefits to diversity. The divergence of opinion is centered around how to achieve this goal.
Overall, those of us who want to protect affirmative action are cautiously optimistic. The University of Texas has enacted a fair process, and we stand with them in defending it. We celebrate the fact that there is a general acceptance of the benefits of diversity, because we know that expanding opportunity is an important national interest.
Marilyn was Counsel of Record for the AAAA Amicus Brief in support of the University of Texas. To download the brief, go to the AAAA website, www.affirmativeaction.org.