Supreme Court Hears Oral Arguments in Fisher II

In what is proving to be the affirmative action case of the decade, the Supreme Court heard arguments again Wednesday in Fisher v. University of Texas (Fisher II). After the original hearing in 2013, the case was remanded to the lower court for review based on clarified standards of strict scrutiny. The Fifth Circuit court then ruled the consideration of race in the UT-Austin admission process did pass a test of strict scrutiny, which sent the question back to the Supreme Court on appeal from Fisher's lawyers.

The theme Wednesday around the nation's highest Court was one of disappointment for all parties: protestors outside argued the case should never have been heard again and judges lamented the lack of new data demonstrating the outcomes of the admissions policies being debated, The Chronicle of Higher Education reported. The oral arguments included both nuanced discussion of the impact of segregated high schools in Texas on admissions, as well as polarizing comments from Justice Scalia that the majority of black scientists do not graduate from top schools because they are "too fast for them."

Major items of discussion to note:

  • Grutter and Fisher I do not appear to be in jeopardy, as acknowledge by the plaintiff and reiterated by Justice Breyer.
  • The Justices were very focused on the unique dynamic between the Texas Top 10 Percent Plan, admission statistics interpretations and critical mass.
  • Given the plaintiffs strategic shift to critiquing the goals of diversity, rather than the means to achieve them, the conservative Justices asked several very direct questions about the actual benefit of this program.
  • There was some concern about whether race-conscious admissions are an on-going necessity.
  • Justices seem to have settled that there is enough on record to decide the case now, rather than send it back for further fact-finding.

After a day of oral arguments, it seems all of the Justices are maintaining their original opinions, which has affirmative action supporters concerned. Justice Kennedy is the only believed swing vote and, while he has said before that the 14th Amendment does not necessarily forbid attention to race, he has never met a race-conscious program he felt passed strict scrutiny, including Fisher. With Justice Kagan recused from the case, even if Kennedy were to side with the lower court rulings, the case would be upheld on a split 4-4 vote and therefore not set any precedent.

If the Court does decide for Fisher, the effect will depend on how strong the ruling is. If the number of minorities admitted is still upheld as a crucial consideration, then its affect will be limited. However, if the ruling insists that strict scrutiny requires programs demonstrate they have attempted all other ways of increasing minority enrollment first, then the ramifications could be dire. 

The court is expected to rule by June.

 

Related Links

The Chronicle of Higher Education

http://chronicle.com/article/Supreme-Court-Laments-How/234547

The Washington Post

http://www.aacrao.org/resources/resources-detail-view/court-divided-over-university-of-texas-race-conscious-admissions

Inside Higher Ed

https://www.insidehighered.com/news/2015/12/10/supreme-court-justices-question-lawyers-key-affirmative-action-case