AT THE SUPREME COURT, A TIMID DEFENSE

Posted by Jeffrey Toobin
October 11, 2012



After the arguments in the Supreme Court yesterday, it’s unclear whether there is a legal problem with the affirmative-action admissions program at the University of Texas. Regardless of how the case turns out, though, it is clear that there is a political problem with contemporary affirmative action.

The flagship U.T. campus in Austin admits students in two ways. First, students at the top of their high-school class—usually the top ten per cent—are admitted automatically. Second, some students are admitted under a “holistic” analysis of all of their qualifications, including their race. Abigail Fisher, a white woman who was rejected for admission, sued, claiming that the consideration of the race of minority applicants amounted to discrimination against her.

Nine years ago, in the case of Grutter v. Bollinger, Justice Sandra Day O’Connor’s opinion upheld a similar admissions program at the University of Michigan Law School. Even then, her ruling expressed palpable discomfort with any sort of racial preference; she said racial considerations should be allowed on campuses for no more than the next twenty-five years. But less than a decade later, her successors on the Court may be on the way to limiting, or overruling, her opinion.

Supporters of affirmative action are now reduced to talking about how little these programs do, not how much. As Justice Stephen Breyer said at the argument, “There is no quota. It is individualized. It is time limited. It was adopted after the consideration of race-neutral means. Each applicant receives individual consideration, and race did not become the predominant factor.” At the daily White House news briefing, Jay Carney gave a similarly grudging endorsement of the practice: “I think you know the President’s position on affirmative action. As the Supreme Court has recognized in the past, diversity in the classroom has learning benefits for students, campuses, and schools. President Obama has said that while he opposes quotas and thinks an emphasis on universal and not race-specific programs is good policy, considering race along with other factors can be appropriate in certain circumstances.”

In light of this chronic defensiveness on the part of affirmative action supporters, it’s no surprise that conservatives are emboldened. Justice Antonin Scalia focussed on the vexing question of who is, in fact, a minority: “Did they require everybody to check a box or they have somebody figure out, Oh, this person looks one-thirty-second Hispanic and that’s enough?” (The lawyer defending the program said that the university relied on the students to define their own ethnicity.) In the same vein, Samuel Alito wondered about the accuracy of the categories: “How do you justify lumping together all Asian-Americans? Do you have a critical mass of Filipino Americans? Cambodian Americans?” O’Connor’s decision said that universities could seek a “critical mass” of minority students. “What is that number?” Chief Justice John Roberts wanted to know. “What is the critical mass of African Americans and Hispanics at the university that you are working toward?” (The lawyer said there was no specific number.)

Alito raised the difficult issue of race and class, which is actually a happy consequence of the development of a sizable upper-middle-class minority community. (This might be called the Sasha and Malia problem.) “If you have a [minority] applicant whose parents… put them in the top one per cent of earners in the country and both have graduate degrees, they deserve a leg up against, let’s say, an Asian or a white applicant whose parents are absolutely average in terms of education and income?” Not really, said Gregory Garre, the lawyer for the university, adding, “we want minorities from different backgrounds. We go out of our way to recruit minorities from disadvantaged backgrounds.”

Garre and the liberal justices tried so hard to say what the affirmative-action program was not that it became hard to understand what it was. At one point, Donald Verrilli, the Solicitor General, who was defending the Texas plan on behalf of the Obama Administration, said that race did not function as a tiebreaker in admissions decisions. “I don’t understand this argument,” Justice Anthony Kennedy responded, “I thought that the whole point is that sometimes race has to be a tiebreaker and you are saying that it isn’t. Well, then, we should just go away. Then we should just say you can’t use race, don’t worry about it.”

“I don’t think it’s a tiebreaker,” Verrilli tried again in response, “I think it functions more subtly than that, Justice Kennedy.”

Subtle indeed, apparently. It may be that, after the Court decides the Texas case, affirmative action will survive in some form or another. But it speaks to the perilous state of public support for affirmative action that its supporters in the Supreme Court could scarcely articulate what it did and why it mattered—while the opponents of the policy spoke with clarity. Policies survive when their benefits are clear—and that wasn’t the case for affirmative action on Wednesday at the Supreme Court.


Photograph of Abigail Fisher by Susan Walsh/AP.