Fisher v University of Texas: What the Judges Asked

by | Nov 25, 2012

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About Claire Overman

Claire Overman is a pupil barrister, and is a former Editor and Communications Manager of the OxHRH Blog. She studied for her BA and BCL at Keble College, University of Oxford. The views expressed in this post are her own.

The third installment in our affirmative action series looks at the oral arguments presented and questions asked by the bench in Fisher v University of Texas.  

In this post Claire Overman takes a closer look at the transcript from the oral hearing.

In anticipation of the Court’s decision, this post takes a closer look at the transcript of the oral hearing of Fisher v University of Texas to see if it sheds any light on what the Justices’ preliminary positions might be on this landmark case. The Court was comprised of Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas, Ginsburg, Breyer, Alito and Sotomayer. Justice Kagan recused herself from the case, as she was involved in the submission of a brief supporting the University of Texas when the case was before a lower court.

As expected, oral argument centred upon the question presented: whether the measures taken by the University of Texas in its admissions process were compatible with the Supreme Court’s previous decision in Grutter v Bollinger. Five of the current Justices (Scalia, Kennedy, Thomas, Ginsburg and Breyer) sat on this decision, with Justices Ginsburg and Breyer forming part of the 5-judge majority which held that an admissions policy which considered racial backgrounds, amongst other individualised factors, did not violate the Fourteenth Amendment’s Equal Protection Clause. In contrast, Justice Thomas formed part of the dissenting minority. However, questioning from the characteristically interventionist bench suggests that the case will rise and fall on the following themes: (a) the goals of university admissions programmes; (b) the permissibility of the use of racial statistics; (c) the institutional issue of how far the Court should interfere with universities’ decisions.

The Goals of University Admissions Programmes

In the early stages of counsel for the petitioner’s submissions, Justice Ginsburg questioned whether the University of Texas’ programme was substantially different from than that in Grutter, which had been held to be constitutional by the majority in that case. Justice Scalia also raised the issue of whether racial balancing was of itself a permissible interest. In connection with this, Justice Sotomayor asked whether or not UT’s programme was setting numerical quotas, or rather other kinds of goals. The issue was raised again during the course of counsel for the respondent’s submissions, with counsel submitting that the goal of UT’s admissions programme was to realise the “educational benefits of diversity.” This prompted Justice Scalia to ask how this was to be measured. Justice Alito also pointed out that UT’s “Top Ten Percent” plan, under which the top ten percent performing high school students are guaranteed a place, regardless of race, already admitted many minority students.

The Permissibility of the Use of Racial Statistics

When questioning counsel for the petitioner, Justice Sotomayor pointed out that it couldn’t seriously be suggested that demographics weren’t a factor to be looked at, in combination with the criterion from Grutter, which was how isolated student minorities felt on campus. The point was also raised with counsel for the respondent by Justice Scalia, when he asked how, in practical terms, universities assess the racial diversity of classrooms, and how the Court was therefore to decide whether UT’s plan was narrowly tailored. Chief Justice Roberts and Justice Alito pointed out that even the criterion of the feelings of isolation amongst student minorities on campus would be impossible to use without looking at student numbers within different racial groups.

The Institutional Question

This issue was raised before counsel for the petitioner and counsel for the respondent. When questioning counsel for the petitioner, Justice Sotomayor asked whether it was the Supreme Court’s job to tell universities how to run, and how to weigh qualifications. Counsel replied that its job was merely to examine the alternatives available. Again, when questioning counsel for the respondent, Justice Sotomayor made the point that the issue was when the Court should stop deferring to UT’s opinion that race was still a necessary factor. Counsel replied that this would be when the educational benefits of diversity were realised.

The Justices’ focus upon these themes suggest that they are to be given prominence when the Supreme Court hands down its judgment. They are clearly seen by the Court to be of critical importance when addressing the future role of affirmative action in the US.

Claire Overman is a BCL student at the University of Oxford and a frequent contributor to the OxHRH blog.

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