On Wednesday, December 9, 2015, I was part of the audience at the Supreme Court to hear round two of Fisher v. University Texas. In 2008, Abigail Fisher, who is white, sued the University of Texas for rejecting her while admitting black and Hispanic students with lower grade point averages and tests scores. Miss Fisher claimed that she was denied her constitutional rights under the equal protection clause of the 14th Amendment because race was not just one of many but was “the” standard used in selecting certain students. The university claimed that its admission policies were legal and fell within the limits of “affirmative action” guidelines.
Nearly 20 years before, in 1996, the Fifth Circuit Court of Appeals in Hopwood v. Texas had ordered the University of Texas to completely eliminate consideration of race in admissions. Cheryl Hopwood, the plaintiff, had been rejected by the UT law school, but after looking at her qualifications and the obstacles she had to overcome–which included caring for her handicapped child–Circuit Judge Jerry Smith concluded that the law school was clearly discriminating against whites.
Texas Governor George W. Bush and other “compassionate conservatives” in the Texas legislature then came up with the 10-percent solution: The university would automatically accept all students in the top 10 percent of every Texas high school graduating class. Because Texas schools remain largely segregated, black students who were in the top 10 percent of their classes in urban schools were often much less qualified than white students who were not in the top 10 percent of their suburban high schools. The blacks were automatically admitted anyway. The 10-percent solution achieved racial diversity by admitting less qualified blacks and Hispanics while denying the use of race as an admissions criterion.
But because of Hopwood, no explicit racial preferences were permitted in the states covered by the ruling: Texas, Louisiana and Mississippi. Hopwood was overturned seven years later by the 2003 Supreme Court case of Grutter v. Bollinger, in which a white applicant to the University of Michigan Law School, Barbara Grutter, made the same claim as Cheryl Hopwood: She suffered discrimination because she was white. The Court ruled that racial quotas in admission were not allowed but that “a narrowly tailored plan” that considered race or ethnicity a “plus factor” was. Since that ruling, most elite universities actually do admit blacks and Hispanics by quota, but they are very careful not to use the word.
The University of Texas started using race as a “plus factor” for admissions in addition to the 10 percent program designed to increase campus diversity. It was on the basis of this explicitly racial preference program that Abigail Fisher first sued the university in district court in 2008.
In 2013, the case came to the Supreme Court for Fisher round one, and I attended oral arguments at that time as well. The Supreme Court decided to remand the case–or send it back for reconsideration–to the Fifth Circuit, which had approved the University of Texas preferential admissions policy, but ordered that the appeals court submit the policy to the restrictive legal requirement of “strict scrutiny.” The Fifth Circuit, once known for its conservative judges but now filled with Obama appointees, did not change its decision even after applying “strict scrutiny” to the university’s racial preferences. “Affirmative action” admissions were re-certified, and this prompted Miss Fisher to bring the case back to the Supreme Court. On December 9, Abigail Fisher got her second day in the high court.
24 Doric columnsIf you’ve never visited the US Supreme Court, a pleasant aesthetic surprise awaits you. Although there are other government buildings built during the 1930s, many of them in the older “Federal style” that uses classical architecture, the Supreme Court’s outside and interior design clearly make it one of the most impressive, along with the old building of the Library of Congress.
The interior is a labyrinth of corridors which lead to the offices of the justices, the largest of which is occupied by Chief Justice John Roberts. Once past the people milling about trying to enter the Court to hear oral arguments, and beyond wooden gates with security guards, there is an almost monastic silence in the area that houses the justices’ chambers.
The heart of the building is the courtroom: the space behind the nine seated justices is framed by four Doric columns in marble, and behind the columns is a large red curtain from the middle of which the justices enter and leave to a hushed audience. Twenty more such columns establish the perimeter of the courtroom. High above the justices’ bench and circling the courtroom are marble friezes of famous lawgivers, such as Hammurabi, Moses, and Justinian.
There are more than the usual security precautions. During oral arguments, armed guards patrol the public areas, sometimes blocking the view of the justices. Correspondence directed to the justices is screened for ricin or any other poison, and since the attacks of September 11, the Chief Justice has a bodyguard whenever he travels overseas.
When the court is called to order, the nine justices–not judges–enter one by one: Chief Justice John Roberts enters first, then Justice Scalia, the senior associate justice, and the last to enter is Justice Elena Kagan, who was most recently confirmed. Before entering, they follow a tradition that has a long history at the Supreme Court. They shake hands to signify that they are of one purpose: to interpret the Constitution of the United States as best they can. US flags flank the justices’ bench.
The public sits in three sections behind the seats allotted to members of the Supreme Court Bar and to the lawyers arguing the legal questions before the justices that day. At 10:00 a.m. on December 9, the clerk of the court banged her gavel and intoned, “Please Rise . . . God save this United States and this honorable court.” Justice Kagan had recused herself, as she had done two years before in round one, because she had been solicitor-general–the government’s chief lawyer–in the earlier phases of the suit, arguing in support of racial preferences. Therefore, only eight justices heard the case.
Liberals, who run the universities, do not like any challenge to their admission policies. As if on cue, the Washington Post featured a December 6 op-ed piece by Sherrilyn Ifill, president of the NAACP Educational and Legal Defense Fund. She defended race preferences by explaining that “a critical mass [of minority students] is necessary to address the racial isolation experienced by minority students, and to obtain diversity of all students.” She noted “the stubborn persistence of racial segregation in Texas” and added that the 10-percent solution had increased the number of blacks and Hispanics but that “the resulting increases were still insufficient.” She did not explain how many would be sufficient.
From the oral arguments, one would never guess that seven justices had agreed to remand the case. Bert Rein, Miss Fisher’s lawyer, began his introductory remarks, but in less than a minute, he was interrupted by the barely audible Justice Ruth Ginsburg. She was followed by Justice Sonia Sotomayor, who has often stated that her own life is an example of the value of affirmative action. One could not mistake their intentions: along with Justice Breyer, they would form the triumvirate that would seek to undermine Miss Fisher’s claim that her 14th Amendment rights were violated.
Justice Sotomayor asked what was wrong with a plan that overtly discriminated against whites. Such a policy apparently did not bother her. Justice Ginsburg, probably having read the NAACP brief, emphasized “the role of segregation” in this case, although that policy died nearly a half century ago. Justices do not often show outward annoyance when a colleague asks a question, but Justice Breyer shook his head in apparent disbelief when Justice Scalia questioned the legality of race preferences. He was obviously annoyed when Chief Justice Roberts asked if the preferential admissions policy would ever stop.
Justice Alito wanted to know if the numerical estimates of the number of blacks and Hispanics who were not admitted “because of the persistence of segregation” were accurate. Throughout the one hour and forty minutes of oral arguments, Justice Clarence Thomas said not one word, a policy he has maintained since his appointment to the Court in 1991.
Gregory Garre, who served as solicitor general under President George W. Bush, argued for race preferences on behalf of the university. He emphasized that in 2002, there were only 282 blacks in a student body of eight thousand. It was at this point that Justice Scalia said that it might be wiser not to admit blacks with lower scores to “first rung” schools, such as the University of Texas–the comment that prompted blowback in the media. When Justice Scalia asked Solicitor General Donald Verrilli when race preferences would ever end, he got only a repetition of the benefits of diversity. The solicitor general claimed that “diversity is the dogma of this case”–and, indeed, it is.
The question on everyone’s mind is how the case will be decided. Over a period of nearly two decades, I have been present at many oral arguments, but I don’t think anyone knows the answer. In April 2013, I heard the State of Arizona argue its case on how to deal with illegal immigration. With two or three possible exceptions, the questions by the justices were directly aimed at the solicitor general, and seemed to leave no doubt about the justices’ intentions. I predicted a “slam dunk” victory for the state. I was wrong. Not only did the court rule 6-3 against Arizona, even the chief justice, whose questions were arrows aimed at the heart of the administration’s case, did not vote as I thought he would. In the Texas case, it appears likely that Justice Kennedy may be the “swing” or deciding vote, as he has been in many others
Despite the uncertainty, I believe that Abigail Fisher did not have a successful day in court on December 9. Unlike their decision to sweep away legal restraints on abortion–which at that time was a crime in most states–or their most recent ukase on homosexual marriage, the justices will not abolish affirmative action. Miss Fisher will learn once again that the 14th Amendment does not really apply to her.