A little over three years ago, Abigail Fisher was at the Supreme Court for oral arguments in her challenge to the University of Texas at Austin’s consideration of race in its undergraduate admissions process. She won a partial victory in that round: the Court sent her case back to the lower court, with instructions for it to take a closer look at whether the university really needed to take race into account to achieve a diverse student body. Thanks to a program (known as the “Top Ten Percent Plan”) that provides automatic admission to UT-Austin to students at the top of their classes at each Texas high school, Fisher argues, the university already has a diverse student body and doesn’t need to consider race to fill the remaining twenty-five percent of the freshman class that isn’t automatically admitted. When Fisher’s case returned to the Supreme Court today for over ninety minutes of oral arguments, at least three of the Court’s more conservative Justices seemed inclined to agree with her that the university should not consider race; a fourth Justice – Clarence Thomas – did not ask any questions but is almost certain to be of the same mind. If so, that would mean that Justice Anthony Kennedy would hold the key to the Court’s eventual decision, and he was harder to read.
For starters, there is one thing about which we can be confident: there is very little chance that the Court will hold that Fisher lacks a legal right, known as “standing,” to pursue her case. Although the university has argued that Fisher can no longer bring her suit because she has already graduated from another university, only Justice Ruth Bader Ginsburg expressed any interest in this issue, and even she didn’t do so until lawyer Bert Rein (who once again represented Fisher) was near the end of his time at the lectern. Rein explained that Fisher is also seeking (among other things) a refund of her application fee and damages arising from her rejection from the university.
We can also be fairly certain that all three of the Court’s more liberal Justices who participated in today’s oral arguments are likely to support the university. (Justice Elena Kagan did not participate in the case, almost certainly because she was involved in it when she served as the Solicitor General of the United States before her appointment.) Justices Ruth Bader Ginsburg and Sonia Sotomayor, for example, suggested that UT-Austin’s consideration of race was not all that different from the one that the Court approved twelve years ago in a case involving the University of Michigan Law School. This is particularly true, Ginsburg asserted, when the school’s “Top Ten Percent Plan” is “so obviously driven” by race: it creates a diverse freshman class, she posited, only because neighborhoods and schools in Texas are so racially segregated. And Justice Stephen Breyer wondered why a determination by faculty and administrators, based on their experience, that the school should consider race in admitting the remaining twenty-five percent of students, to ensure that some minority students are among that twenty-five percent, wouldn’t be “a diversity-related judgment of what is necessary” for the school.
The more conservative Justices, however, were unwilling to accept even the premise of UT-Austin’s argument that it needed to be able to consider race in selecting the twenty-five percent of students not admitted through the Top Ten Percent Plan so that it would have “a variety of perspectives.” Justice Samuel Alito, for example, chastised former Solicitor General Gregory Garre, representing UT-Austin, for what Alito characterized as the “suggestion that there is something deficient about the African-American students and the Hispanic students admitted through the” Top Ten Percent Plan. Such a suggestion is, Alito told Garre, “based on a terrible stereotyping.” A few minutes later, Alito disputed that UT-Austin’s policy was even creating the diversity that the university regards as so important, noting that twenty-one percent of the African-American and Hispanic students admitted under the Top Ten Percent Plan had parents with a bachelor’s degree – just five percent lower than their counterparts admitted to fill the remaining slots in the class. And Chief Justice John Roberts asked Garre dubiously, “what unique perspective does a minority student bring to a physics class?”
Other questions focused on the need for affirmative action at all. Roberts reminded Garre that, in upholding the University of Michigan Law School’s consideration of race, the Court had indicated that it did not expect universities to still need to use affirmative action in twenty-five years. Emphasizing that it had been twelve years since that ruling, Roberts asked Garre whether universities would “hit the deadline.” And, Justice Antonin Scalia added, how exactly will courts and universities know when affirmative action is no longer needed? Although universities like UT-Austin have often suggested that affirmative action will no longer be necessary when minority students reach a “critical mass” at which there are enough of them that they no longer feel isolated, Scalia asked Rein skeptically whether there have been any scientific studies to identify that tipping point. Later on, Scalia questioned whether the university’s consideration of race even benefited African Americans, telling Garre that it doesn’t help those students to get into a school where, he asserted, they won’t do well. “I am just not impressed,” Scalia continued, by the prospect that UT-Austin will have fewer African-American students if it doesn’t consider race when admitting students who are not entitled to a place in the freshman class under the Top Ten Percent Plan.
Kennedy seemed to want to extend a lifeline to the university: he floated the idea that the case should be sent back to a federal trial court so that the university could add evidence about why it needed to consider race to the record. That possibility, which would allow the Court to put off a ruling by the Court on the merits of the case, evoked scorn from Scalia, who complained that doing so would effectively give the university a “do-over,” allowing it to “now put in what they should have put in order to prevail the first time around.” But both Garre and Verrilli seemed reluctant to actually grab the lifeline that Kennedy was offering, and by the end of the oral arguments, it looked like Kennedy himself may have abandoned the idea, as he told Garre that even if the case were remanded, “you might not have put in much more evidence.”
Aside from his questions about a possible remand, Kennedy did not clearly tip his hand. Notably, however, he was among the four Justices who dissented twelve years ago from the Court’s ruling upholding the University of Michigan Law School’s use of race. But even if he were to join the Court’s three more liberal Justices, they would still need a fifth vote for an actual opinion in the university’s favor; but even without that fifth vote, the Fifth Circuit’s decision would simply be affirmed, without more, which supporters of the Texas program would view as a huge victory. If that happens, we could hear an announcement in the case quite soon. Otherwise, just as we did the last time Fisher’s case was at the Court, we could have to wait well into next year.