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Supreme Court Hears Affirmative Action Challenges by Public College Applicants

October 10, 2012 at 12:00 AM EDT
The U.S. Supreme Court took up a case on whether race should be considered in college applications. Gwen Ifill talks to National Law Journal's Marcia Coyle who explains the arguments. Ray Suarez talks to NAACP's Debo Adegbile and the Century Foundation's Richard Kahlenberg about potential implications for public institutions.

GWEN IFILL: The Supreme Court heard arguments today in one of the most closely watched cases of the term. It marked a return to the decades-long legal debate over affirmative action.

The scene outside the Supreme Court building made clear just how anticipated this case has been.

For the first time in nearly a decade, the justices are considering whether it’s constitutional for universities to use race in deciding who they admit.

The suit was brought by Abigail Fisher, a white honor roll student who was denied admission at the University of Texas at Austin in 2008.

Fisher, now 22, was in the court chamber today and later spoke briefly to reporters.

ABIGAIL FISHER, plaintiff: I hope the court rules that a student’s race and ethnicity shouldn’t be considered when applying to the University of Texas.

GWEN IFILL: Her lawyer, Bert Rein, said it comes down to equal protection under the law.

BERT REIN, attorney For Abigail Fisher: We have recognized that there are some interests in diversity that are beneficial in the educational sphere.

But we have said and we continue to say that is not an overriding consideration that has to be administered very narrowly, because — because it’s an odious and dangerous classification.

GWEN IFILL: ButUniversity of Texas president Bill Powers argued that concern is trumped by the need for a diverse student body.

BILL POWERS, University of Texas: We believe the educational benefits of diversity are so important that they’re worth fighting for all way to the United States Supreme Court.

Our lawyers this morning effectively made the case to the justices that diversity, ethnic and otherwise, benefits all of the students on our campus.

GWEN IFILL: The high court last visited the issue in 2003, deciding 5-4 to let the University of Michigan Law School could use race as one factor in its admissions process.

Before then, the University of Texas guaranteed acceptance for the top 10 percent of students at every high school in the state. But after the Michigan decision, Texas and other schools added race as a factor for applicants who are not guaranteed admission under the top 10 percent plan.

The eight justices who heard today’s arguments must now decide whether that two-tiered system passes constitutional muster. Justice Elena Kagan is not taking part. She recused herself after working on the case as solicitor general under President Obama.

For more on today’s arguments, we turn, as always, to Marcia Coyle of “The National Law Journal.” She was in the courtroom this morning and she is back with us again tonight.

Marcia, so how did the University of Texas attorneys defend their policies?

MARCIA COYLE, “The National Law Journal”: Well, the university said that race under its plan is one of roughly a dozen factors that are considered when a student is going to be considered for admission into the university, that there is no quota, that the plan as constructed and administered and implemented follows all of the guidelines that the Supreme Court set down under the Grutter decision in 2003.

The justices, Gwen, have divided by race in the past. And so it wasn’t surprising that that divide played out again during the arguments today.

You heard the justices that are more moderate to liberal, such as Justices Breyer and Sotomayor and Ginsburg, being concerned that Abigail Fisher was asking the court to overrule the Grutter decision.

Justice Breyer, for example, pointed out that two lower courts here had looked at Texas’ plan and found that it did meet all of the requirements under Grutter.

And so he pressed Ms. Fisher’s lawyer as to why do you say it doesn’t satisfy Grutter.

And here Mr. Rein, representing Ms. Fisher, argued that Texas never considered race-neutral alternatives after the 10 percent plan went into effect to see if it could achieve what Grutter calls a critical mass of under-represented students.

I use that word critical mass because it became very important during the arguments when the more conservative justices began started quizzing the university’s lawyer, Greg Garre.

GWEN IFILL: So they were questioning basically whether this idea of a critical mass is even worthwhile or constitutional in itself?

MARCIA COYLE: Yes, and how — as Chief Justice Roberts said, how do you measure critical mass?

Under the 14th Amendment, when classifications are made on the basis of race, the court applies its strictest scrutiny and it says to the public entity, here the university, the racial classification has to be narrowly tailored to achieve a compelling state or governmental interest.

And Chief Justice Roberts said, how do you define critical mass, and if you can’t define it, how can we measure whether your plan is narrowly tailored?

GWEN IFILL: And how do you measure a compelling state interest in this case or government interest?

So, how is the court different than it was in 2003, when affirmative action was upheld then, and now there’s a possibility it won’t be because of this particular — the terms of this particular case? What’s different about the court?

MARCIA COYLE: Well, the composition of the court has changed.

The Grutter decision was 5-4 which Chief Justice Rehnquist was chief. And the court was divided back then. It was a decision by Justice Sandra Day O’Connor, who, by the way, was in the courtroom today in the guest seats of the justices.

GWEN IFILL: Is that unusual?

MARCIA COYLE: Well, she has come occasionally, but I think she has a special interest in this case.

You have new justices. You have four new justices on the court. But with the absence of Justice Kagan in this case, you’re dealing with eight justices, the possibility of a 4-4 split.

Also, Justice Kennedy has always been the key vote in these race-based cases. He asked very few questions today, so he didn’t really reveal…

GWEN IFILL: You couldn’t really read him.

MARCIA COYLE: No, you couldn’t.

But I will say this about Justice Kennedy in these types of cases. He has never found an affirmative action plan that he feels is constitutional. But he always holds out the hope that there is one out there.

GWEN IFILL: So this is not — this would basically take the power away from colleges to make the decision about what’s acceptable, and let the courts decide it?

MARCIA COYLE: It depends on how the court — how the court views the Grutter decision.

Mr. Rein, for Abigail Fisher, was talking about how Grutter needs to be I guess you could almost say tweaked, reworded to make clear when race can be used.

Justice Sotomayor said she thought he was saying Grutter ought to be gutted. I think the court is — we will just have to wait and see how the court applies Grutter this case.

GWEN IFILL: Whether it’s possible for any of it to stand if they rule in fact against the university.


And it’s important to remember that Texas’ 10 percent plan is not being challenged here, and it has resulted in some increased diversity.

GWEN IFILL: Go ahead.

MARCIA COYLE: Most universities don’t have the 10 percent plan.

GWEN IFILL: Exactly.


GWEN IFILL: A fallback plan, in other words…


GWEN IFILL: … to achieve maybe the same end.

If Justice Kagan has recused herself, and there’s a possibility of — possibility at least of a 4-4 decision, what would happen?

MARCIA COYLE: That would leave in place the lower court’s decision, and that was by the U.S. Court of Appeals for the Fifth Circuit, which, by the way, is one of the more conservative federal appellate courts in the country.

That court ruled in favor of the university. Not surprisingly, too, Gwen, this case has attracted a large number of amicus briefs, more than 90 amicus briefs.


MARCIA COYLE: And they have come across the spectrum on the side of the university, roughly 70 of those 90 briefs. And they have come from military leaders, businesses, as well as civil rights organizations.

GWEN IFILL: And this will be a test about whether any of those kind of things matter, I suppose.

MARCIA COYLE: Absolutely.

GWEN IFILL: Marcia Coyle of “The National Law Journal,” thanks again.

MARCIA COYLE: My pleasure, Gwen.

GWEN IFILL: Now Ray Suarez has more on the larger stakes and potential fallout arising from today’s arguments.

RAY SUAREZ: And for that, we turn to two people who have been a big part of the national conversation surrounding this case.

Debo Adegbile is acting president and director-counsel of the NAACP Legal Defense and Educational Fund, which filed an amicus brief in this case.

And Richard Kahlenberg is a senior fellow at The Century Foundation. He wrote a recent report arguing for race-neutral admission policies that he says foster diversity.

You were at the court, Debo. What’s at stake for coming classes of rising freshmen and their families seeking admission to public universities in this case?

DEBO ADEGBILE, NAACP Legal Defense and Educational Fund: Well, the stakes are very high.

It’s clear that everybody recognizes today that diversity in higher education is a compelling interest. It’s something that benefit — all the all the students benefit from, black, white, Latino, Asian. Everybody benefits from these cross-racial interactions.

And, more importantly, too many of our high schools are racially identified. There’s lots of residential segregation, which leads to segregation in schools, not by law, but by practice.

And the result of this is that too many kids don’t have these interactions until they get to college and are able to learn from each other and break down stereotypes.

So, the ramifications of this case could be far-reaching, depending upon how the court rules.

RAY SUAREZ: Richard Kahlenberg, far-reaching consequences?

RICHARD KAHLENBERG, The Century Foundation: Oh, absolutely. This case really goes the question of what we mean by equal opportunity in our society.

Should race count in deciding who gets ahead? How do we create racial diversity in our universities? I agree with Debo that it’s very important that our leading institutions of higher education have students of all different racial and ethnic groups.

My concern with the current affirmative action is that, essentially, universities assemble wealthy kids of all colors. And we’re not getting that genuine diversity that has to do also with socioeconomic status.

RAY SUAREZ: Well, Debo Adegbile, you mentioned the use of residential patterns as a way of organizing high schools. By using the 10 percent plan, by basically taking the top finishers in senior classes, didn’t Texas take race out of the equation by just saying, look, the top students from this high school, whatever color they are, are in?

DEBO ADEGBILE: In some sense, it did. Using the top 10 percent plan is racially neutral on its face. Of course, it’s based in a history of segregation and discrimination in Texas that gives us the housing pattern that you find.

For a long time, the schools in Texas were segregated by the rule of law. And, indeed, the last time, many decades ago, that the University of Texas was in the Supreme Court on its admission policy, it was on the wrong side of history.

It was trying to keep Heman Sweatt, an African-American who wanted to attend law school at the flagship institution, out. And Thurgood Marshall took up his case.

And so the history of the 10 percent plan is that you get some measure of diversity, but you get it because of our history of separating each other.

What this plan is trying to do is to say, look, we need to come together in the classrooms, on the fields of competition, and in the dining hall to be able to have interactions that don’t happen as much as we would like them to in our neighborhoods and schools.

RAY SUAREZ: Well, you have argued, Mr. Kahlenberg, for race-neutral or race-blind methods. If Texas is using this unfortunate legacy that Mr. Adegbile identifies, but using it in a non-race-conscious manner, don’t you get where you want to get without using race as a yardstick?

RICHARD KAHLENBERG: Well, absolutely. That’s been the dilemma all along. How can you get racial diversity without using race? And for years, the defenders of affirmative action said it is simply impossible.

Justice Blackmun said there is no other way than counting by race.

And Texas showed there is another way. Here, they have a 10 percent plan which allowed kids who had — were from high schools that had never sent anyone to U.T. Austin now had the opportunity to go.

The other piece of Texas plan is an affirmative action program based on socioeconomic status. So economically disadvantaged students of all races were able to get into the University of Texas.

RAY SUAREZ: But didn’t race come in, in a second phase? After they waved in the 10 percent, they then started using these various other filters to fill the rest of the classes in the U.T. schools. Isn’t that the case?

DEBO ADEGBILE: That is exactly right.

And to Mr. Kahlenberg’s point, it is both socioeconomic and race and leadership and a range of other factors. So, Texas, in many respects, is doing it in a way that is consistent with everything that you care about.

Our fundamental contention is that the history of discrimination is such, and the practical experience is such that if you have two things that are important, socioeconomic diversity and race, you shouldn’t blow up the bridge that has allowed people to get to college in — to follow one direction that won’t get you all the way there.

We can do more and need to do more.

RAY SUAREZ: Is part of the problem that we’re trying to achieve broadly social goals using individuals, so that what might be good for Texas or U.T. might be bad for Abigail Fisher?

RICHARD KAHLENBERG: Well, that’s right.

And you saw the conservatives in the oral argument today really focusing on the means by which Texas was trying to achieve its diversity. So, Texas had a successful plan without using race. Then they threw race into the mix. And that’s where people have real troubles.

By contrast, if you look at the polls, by 2-1, Americans support the idea of giving a leg up to low-income students of all races.

There’s research to suggest that, today, the socioeconomic obstacles to a student’s doing well on the SAT are about seven times as large as the racial obstacles.

And I think the court is likely to take account of those types of facts and suggest, OK, if you want to try to create equal opportunity in our society, go after those class disadvantages, and then the racial issue will take care of itself, given that African-Americans and Latinos are disproportionately low-income in our society.

RAY SUAREZ: You have said you both want to get to the same place.


RAY SUAREZ: What would be wrong with using Mr. Kahlenberg’s formula, given that blacks and Latinos are disproportionately poor in the United States? You would still get to diversity if you didn’t use race, if you used socioeconomic measures, wouldn’t you?

DEBO ADEGBILE: So we have the perfect test case, which is there was a period in Texas when a lower court struck down the consideration of race and Texas could only have the top 10 percent plan.

And under that plan, the freshman class at U.T. only had 4.5 percent African-Americans, despite a 11 percent, 12 percent, 13 percent graduation rate from high school.

And so there was a measurable and appreciable gap that led to students on campus feeling racially isolated and feeling like they were spokespeople for their race, that there weren’t other students like them.

That inhibited the cross-racial interactions and the learning from one another. That is the educational goal.

So, Texas, having had that experience, decided to add on this additional piece to try and get more benefits from the goal of diversity.

RAY SUAREZ: Quickly, Mr. Kahlenberg, if Abigail Fisher prevails, what would face incoming freshman classes over the next several years?

RICHARD KAHLENBERG: Well, I think the research suggests that if Abigail Fisher prevails, we will see universities pursue a better kind of affirmative action, one that gets at these issues of class more deeply than they do today.

Right now, under race-based affirmative action, 86 percent of African-Americans at the selective colleges are upper-middle-class or even quite wealthy.

And at the same time, rich kids outnumber poor kids by 25-1. So we need to more aggressively address this class issue.

And I wish that universities would care about that for its own sake.

But the experience in our country suggests that, for a variety of reasons, universities do care about racial diversity, and they will use class or economic status only as a way of indirectly getting at race.

RAY SUAREZ: Richard Kahlenberg, Debo Adegbile, gentlemen, thank you both.