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After Fisher Arguments, Justices Appear Typically Divided


US Supreme CourtWASHINGTON ― The steps of the Supreme Court were a lively scene at the conclusion of the court’s oral arguments on Fisher v. the University of Texas at Austin, a case that centers around the constitutionality of affirmative action. Rev. Al Sharpton addressed a crowd of National Action Network (NAN) supporters in his wonted rousing style. When Abigail Fisher, the case’s protagonist, passed by to hail a cab minutes later, the crowd grew rather more animated, chanting, “What do we want? Affirmative action!”


Earlier, inside the court, the proceedings were no less heated, if somewhat more subdued in expression. The liberal and conservative justices showed themselves to be deeply divided over whether race should be a consideration in admissions policies at UT Austin and other institutions of higher education across the nation. The arguments went on for more than 90 minutes Wednesday morning.


The arguments focused on whether or not UT Austin is justified in using race as one factor for consideration when admitting one-quarter of incoming freshman. UT Austin admits 75 percent of its students under the top ten percent plan, by which students who rank in the top 10 percent of their high school class are offered automatic admission to the university. The remaining 25 percent of seats are determined through a holistic admissions process, which uses race as one of the factors for consideration.


Both the top 10 plan and the holistic admissions plan are intended to promote both economic and racial diversity on campus. Gregory Garre, the Washington attorney who represents the university, said that the top ten percent plan by itself was insufficient to achieve a representative level of diversity on campus, making the holistic admissions process a necessary complement.


Garre argued that racial diversity on campus constitutes an educational benefit to all students, a claim that some justices seemed inclined to disbelieve. “What unique perspective does a minority student bring to a physics class?” Chief Justice John Roberts asked at one point during the arguments.


Justice Antonin Scalia suggested that admitting students through holistic review might do them a disservice, and that African-American students who are not in the top 10 percent of their high school might benefit from attending a “slower-track school” as opposed to the state flagship.


“One of the [amicus] briefs pointed out that most of the Black scientists in this country don’t come from schools like the University of Texas,” Scalia said, later adding, “They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.”


The last time the Court ruled on race-conscious admissions was in the 2003 Grutter v. Bollinger decision. Grutter centered around race-based admissions policies at the University of Michigan Law School. In the conclusion to her majority opinion, then-Justice Sandra Day O’Connor wrote that racial preferences in admissions policies, as an “extraordinary power” granted to universities, must have a logical end point, which she set at 25 years in the future.


Justice Roberts pointed out that 12 years have gone by since the Grutter decision and asked what benchmark would be used to establish that racial preferences would no longer be necessary.


Garre said that it was not possible to determine when preferences would be unnecessary, but said that, without an affirmative action policy, UT Austin’s racial diversity could be expected to decline. He pointed to the precedent of the University of California, where the number of Black students fell after the state banned race-conscious admissions.


Justice Anthony Kennedy expressed some frustration that the university did not appear to have any new data showing that UT Austin’s holistic admissions plan is working as intended.


While the four conservative justices, Samuel A. Alito, Roberts, Scalia and Clarence Thomas appear to disfavor the UT’s arguments, Justices Ruth Bader Ginsberg, Stephen G. Breyer and Sonia Sotomayor are expected to vote in favor of it. The outcome ― expected to be determined by the end of June ― is predicted to swing on Kennedy’s vote. Justice Elena Kagan has recused herself from the case because she worked on it prior to her appointment. Her absence means that the case will be decided by eight justices, with the result that it could end with a 4-4 split.


Thomas, who has been a staunch opponent of affirmative action policies, remained silent during the arguments.


Staff writer Catherine Morris can be reached at [email protected].

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