By Mark Ladov, counsel for the Justice Program of the Brennan Center for Justice at NYU School of Law.
All eyes were on Justice Kennedy at this week’s oral argument in Fisher v. University of Texas at Austin. As readers of this blog well know, the Supreme Court holds the opportunity to rule on the future of race-conscious inclusive admissions policies — and once again, Justice Kennedy is presumed to be the swing Justice who will decide on the direction of the Court. It is always dangerous to predict rulings based on the Justices’ questions at oral argument, a point driven home by last term’s surprise ending to the Affordable Care Act litigation. And Justice Kennedy, in particular, seemed to keep his cards close in the questions he posed. But the oral argument does suggest that the forthcoming ruling will hinge on one key question: whether the University has persuaded the Court that race-conscious admissions policies remain necessary to achieve a “critical mass” of diversity in its classrooms and campus.
The concept of “critical mass” comes directly from the Supreme Court’s 2003 ruling in Grutter v. Bollinger, where the Court affirmed the ability of University of Michigan Law School to use a race-conscious but individualized review to ensure a “critical mass” of diversity in its student body. The term did not refer to a specific number, but to an aspiration: that a class filled with sufficient diversity would ensure that no individual felt isolated or was forced to “represent” his or her race; that racial stereotypes would break down within a truly varied student body; and that the university would fully realize the educational benefits of diversity for all students.
UT provided the Court with plenty of evidence that it has yet to reach this critical mass. The university used survey evidence to show that African American and Latino students continue to feel unrepresented on campus. UT showed that minority enrollment plummeted when the school relied solely on a plan to admit the top ten percent of every high school class; this policy fosters a certain level of diversity, but only because Texas high schools remain so segregated by race and class. The school looked closely at its demographics to see that certain classes and programs remain segregated. UT did not rely on any one single fact or figure, but instead followed Grutter’s instruction to look broadly at whether the benefits of diversity on its campus could still be improved.
Notably, the Justices at oral argument declined to cast doubt on the importance of this education diversity. Nobody on the Court questioned whether diversity in higher education is a compelling state interest. Indeed, Abigail Fisher’s lawyer backed away from any suggestion that Grutter should be overruled. (Although, as Justice Sotomayor rightly responded, “you don’t want to overrule it, but you just want to gut it.”)
Instead, Chief Justice Roberts framed the key issue as a line-drawing question: when is diversity strong enough to prevent schools from continuing to use race-conscious admissions? The Chief Justice explained, “I understand my job under our precedents to determine if your use of race is narrowly tailored to a compelling interest. The compelling interest you identify is attaining a critical mass of minority students at the University of Texas, but you won’t tell me what the critical mass is.”
The problem is that this question is a trap. The conservative wing of the Court seems to question whether strict scrutiny allows it to defer to the University’s subjective assessment of critical mass. But the alternative, as Justice Kennedy pointed out, is to “identify a numerical category, a numerical standard, a numerical designation for critical mass.” Setting a hard number may look like the kind of bright-line test favored by constitutional jurisprudence — but under these circumstances, it would also look like a quota.
In other words, universities are caught in Catch 22. If they use subjective measures as urged by Grutter, they are accused of failing to set up a system that could identify when a critical mass has been reached. If they use objective targets, they are accused of setting up quotas, which are barred by the Supreme Court. Under these circumstances, it becomes clearer why the aspirational approach endorsed by Justice O’Connor in Grutter won the day — and why it ought to be approved again by the current Court.
Some of the questions from the Justices also hinted at a misunderstanding of UT Austin’s policy. For example, Justice Alito asked the attorney for UT Austin if it would violate the equal protection clause “if you have two applicants who are absolutely the same in every respect [except for their race and] one gets in; one doesn’t get in.” But UT Austin does not prefer any single student based on race. It looks at race alongside a host of factors to evaluate an applicant’s experience, skills, and strengths they can bring to student life. No student can truly know whether his or her race was a factor in granting or denying admission, because the university has not created a zero-sum game based on race, as suggested by this hypothetical.
Even more fundamentally, this hypothetical ignores the realities of how race is experienced in America. Justice Alito conjures up two individuals who are “absolutely the same in every respect” except for their race. He imagines race as just another checkbox on a college application, like playing in the school band or taking AP calculus. But in America, race is woven into every aspect of our history and our circumstances. In a nation where racial disparities continue to persist in education, healthcare, economic opportunity, criminal justice and indeed every walk of life, race shapes our expectations and our opportunities. And ensuring equal opportunity for all Americans is impossible unless we acknowledge those racial disparities and work to overcome them.
This does not mean we should simply accept these barriers and boundaries, or that we should tolerate stereotypes or prejudice. But pretending that race does not exist is not the same as working to overcome racism. And for UT to consider how race shaped the character of its applicants is not to discriminate; it is simply to acknowledge reality. Ignoring that reality would actually harm many students, by forcing them to censor an important part of their identity when applying to college.
It would also force UT to ignore a key part of its educational mission: preparing its students to participate effectively in a multi-racial democracy and workplace. Nothing that was said at the Supreme Court this week casts any doubt on the core lesson of Grutter that diversity in higher education benefits us all, and remains necessary for the economic and political success of our nation. The only question is how we get there, and whether the Supreme Court will only permit schools to promote diversity indirectly, rather than confronting our nation’s challenges head on.