The Supreme Court heard oral arguments Wednesday in an affirmative action case that could have major repercussions throughout higher education.
Fisher v. University of Texas at Austin gives the Court a chance to overturn its landmark 2003 decision in Gratz v. Bollinger and Grutter v. Bollinger, in which it held that affirmative action is constitutional, as long as admissions offices do not attempt to quantify the advantage given to particular minorities. University President Lee Bollinger, who was president of the University of Michigan at the time, crafted the defense in those cases and has continued to be a prominent advocate for affirmative action.
If the Court rules that affirmative action is unconstitutional—a real possibility, considering that its justices are more conservative now than they were nine years ago—the decision would take effect immediately at all institutions that receive federal funding, including Columbia. If that happens, Columbia would be forced to stop using race as a factor in admissions, likely decreasing the diversity of incoming classes—a possibility that Bollinger told Spectator “would be an educational tragedy, but also a societal tragedy.”
The appellant in the new case, Abigail Fisher, is a white student who claims she was unfairly denied admission to the University of Texas because of her race. The university automatically accepts the top 10 percent of seniors who graduate from public high schools statewide, but takes race into account during the admissions process for the remaining spots.
Columbia and the seven other Ivy League schools filed a joint amicus brief in support of the university's affirmative action policy.
Law School professor Theodore Shaw, who served as lead counsel in the coalition that defended affirmative action in 2003, described Wednesday’s oral arguments—and the justices’ reactions—as “bloody” for supporters of affirmative action.
“From the standpoint of those who support diversity, it was tough sledding,” said Shaw, the former president of the National Association for the Advancement of Colored People’s Legal Defense and Educational Fund.
When the Court upheld affirmative action in 2003, the justices in the majority wrote that the policy would be necessary for at least the next 25 years, in order to ensure a “critical mass” of minority students in institutions of higher education. Many of the justices’ questions Wednesday focused on the practicability of determining a critical mass.
“Grutter said there has to be a logical end point to your use of race,” Justice Antonin Scalia said, according to Court transcripts. “What is the logical end point? When will I know that you’ve reached a critical mass?”
Bollinger said that defining a critical mass has largely been left up to universities. He said that if the Court establishes an exact percentage that constitutes a critical mass, many schools would be deterred from using affirmative action because of the possibility of litigation.
Scalia, Justice Anthony Kennedy, and Chief Justice John Roberts asked some of the more pointed questions on Wednesday.
“When you put the questions together, as well as their records in prior cases regarding the constitutionality of race-conscious diversity cases, you pretty much know where they are going,” Shaw said, referring to Roberts and Scalia.
Scalia, Roberts, and justices Samuel Alito and Clarence Thomas are expected to oppose affirmative action, and justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor are expected to support it.
Justice Elena Kagan, who argued for affirmative action as solicitor general, has recused herself from the case, meaning that Kennedy—who voted against affirmative action in 2003—is likely to be the decisive vote. If he votes to uphold affirmative action and forces a 4-4 tie, the lower court’s decision—that affirmative action is constitutional—would be upheld.
Bollinger said that the Supreme Court should not ignore its own precedent, although he is concerned that the justices will do exactly that.
“They really did set down a basic principle and doctrine under the 14th Amendment, and they really did say this was good for a generation,” Bollinger said, describing the 2003 decision.
“The legitimacy of the Supreme Court and the law is based on the foundation of following precedent,” he added.
The justices could also rule that Fisher has no legal standing to sue the state, but based on Wednesday’s arguments, Shaw expects a less favorable outcome for supporters of affirmative action.
“Nothing in the transcript makes me sanguine about where this case is going,” he said.