The Supreme Court heard oral arguments Wednesday in the high-profile case Fisher v. University of Texas at Austin, which could determine the future of affirmative action in public university admission.
Abigail Fisher, a white woman, was rejected from the University of Texas at Austin (UT-Austin) in 2008. Fisher subsequently sued the school, arguing that its race-conscious admissions policy was discriminatory and violated her right to equal protection. Both a district court and the 5th Circuit have found the school’s admissions process, which considers race as one factor when evaluating applicants, to be constitutional.
Much of the questioning dealt with the precedent set by Grutter v. Bollinger, a 2003 case in which the Supreme Court upheld a University of Michigan Law School policy that used race as one factor in admissions decisions, finding that the school had a compelling interest “in obtaining the educational benefits that flow from a diverse student body.”
Justice Sonia Sotomayor peppered Fisher’s lawyer, Bert Rein, with questions from the beginning of his oral argument, and told him he was trying to “gut” the Grutter decision. Sotomayor also cited a UT study showing that many minority students still feel isolated on campus, and suggested that the school’s demographics continue to reflect an underrepresentation of black students.
On the other side, Chief Justice John Roberts focused several of his questions on the Grutter court’s finding that schools could consider race in admissions until the number of minority students reached a “critical mass.” On Wednesday, several of the justices asked both sides to define this “critical mass,” but received little clarity on the issue, possibly because, in identifying an exact number, the lawyers feared establishing a quota system, which the Supreme Court has previously banned.
Justice Anthony Kennedy, who many expect to be the swing vote in this case, also appeared somewhat skeptical of the university’s arguments, noting that he was uncomfortable with the policy’s purported favoring of privileged minority students over poorer white applicants in the name of racial diversity. “What if they’re in the top 1 percent,” Kennedy asked. “Do they deserve a leg up over a white applicant who is absolutely average?”
Because Justice Elena Kagan recused herself from the case, a 4-4 tie would uphold a lower court decision in favor of the university.
As InsideCounsel reported last week, dozens of businesses and universities filed amicus briefs supporting either Fisher or the university. One brief filed on behalf of numerous Fortune 100 companies urged the court to uphold UT-Austin’s policy, arguing that corporations “must be able to hire highly trained employees of all races, religions, cultures and economic backgrounds” and that it is “critical” that “all of their university-trained employees have the opportunity to share ideas, experiences, viewpoints and approaches with a broadly diverse student body.”
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