Affirmative Action’s Fate May Turn on Defining ‘Critical Mass’ of Diversity

With the policy narrowed to one promoting diversity rather than fostering equity, the Court now wants to know how its success can possibly be measured.

By Victor Goode Oct 11, 2012

Yesterday the Supreme Court heard the case of Fisher vs. University of Texas at Austin. As everyone expected, the debate was hot and contentious, and once again all eyes are on Justice Anthony Kennedy. He will likely be the deciding vote on whether affirmative action in higher education remains, even in the significantly narrowed state that it exists now.

The Court’s liberal justices immediately raised the issue of whether Abigail Fisher even had standing to bring her case to the Supreme Court. Typically the remedy for being denied admission to a college is a court order requiring that the applicant be accepted. But Fisher enrolled at LSU shortly after the case was originally filed and has already graduated. Based on this, Justices Ruth Bader Ginsburg and Sonia Sotomayor questioned why the Court was even hearing the case.

Justice Stephen Breyer joined in defense of the university’s affirmative action plan by reminding Fisher’s lawyer, Bert Rein, of the "two court rule." Since both the District Court and the Circuit Court of Appeals agreed that Fisher had no case, then Fisher faced a substantial obstacle in persuading the Supreme Court that they were both wrong. This was especially true since the Texas plan in question was based on a previous Supreme Court decision, Grutter vs. Bollinger, reached only nine years ago.

But as the argument continued it became clear that the skeptical justices were in the minority. Justice Antonin Scalia quickly weighed in referring to the affirmative action system at Texas as a "racial quota." He urged Rein to challenge the entire concept of the university seeking a "critical mass" of students of color–the standard set in Grutter for when it is no longer appropriate to consider race. Scalia in effect made the argument for the plaintiff, stating that there was no connection between the racial make up of the university and whether students of color felt isolated. Following Scalia’s lead Rein added that "racial balancing is not a permissible interest…and this court has constantly held [that]. And this is something that we certainly agree with."

The argument then shifted to whether the University of Texas had narrowly tailored its use of race to follow Grutter and the requirements of the 14th Amendment. Scalia had already voiced his doubts and now Justice Samuel Alito embraced Rein’s argument by stating that he couldn’t figure out what a critical mass is either. Rein argued that Texas couldn’t be in compliance because "if you have no understanding of what ‘critical mass’ is, you can’t tailor to it." The university’s inability to clearly answer this question–when does it know it’s reached enough diversity to stop considering the need for diversity–hung over the hearing.

Following some debate back and forth about what the actual admissions numbers at UT have been, both before and after the affirmative action plan, the argument settled on the core issue. Should universities be free to craft their admissions systems as long as they follow Grutter, or will the Court place new restrictions on what can be done with the use of race?

Kennedy will likely once again turn out to be the key vote on this question. Justice Elena Kagan recused herself because she had worked on the Fisher case on behalf of the Obama administration when she was solicitor general, leaving a clear conservative majority–unless Kennedy sides with the liberal wing.

Kennedy asked several questions, at times challenging Rein on various facts and UT’s counsel on whether Grutter allows a university to determine a critical mass by fixing a specific number or percentage of diversity. But it wasn’t evident from these queries where he might be leaning.

The other conservatives, Scalia, Roberts and Alito (Justice Clarence Thomas is known for being silent during oral arguments) professed to be dumbfounded about how the university–or for that matter, an individual applicant–might even determine what race they are. At one point Scalia asked whether someone who was 1/32nd Hispanic would qualify as a "minority."

The absurdity of such questions reveal a larger problem that will persist regardless of the outcome of this case. The Court has over the last 40 years adopted a vocabulary and approach to issues of race that is increasingly out of step with reality. While progressive scholars in departments of history, sociology, anthropology and others have broadened our understanding of race, this court has moved in the opposite direction. Even the university, which has staunchly defended its program, never acknowledged that the reason that a critical mass was even part of the admissions equation was because of the myriad forms of racism in society that people of color from all socioeconomic strata continue to face. White privilege is alive and well in America, despite racial progress and students of color know this all too well.

But the justices insist on fooling themselves into believing that aversive racism, institutional racism and structural racism simply disappear because they have declared the law to be colorblind. The only thing that is disappearing is the capacity of our courts under the Constitution to address these critical social issues.

Some conservative criticisms of affirmative action are on point. Today it tends to benefit more people of middle class background from communities of color than the working poor. But the alternative that they offer is shear fantasy. We have seen what the dismantling of these programs looks like in states like California and Michigan, both of which passed state laws banning affirmative action. Enrollment of students of color, particularly at the most prestigious schools dropped significantly. Affirmative action, or what little of it remains is a far cry from the 14th Amendment’s promise of equality. If the vote in Fisher turns out to be four to four, the UT will prevail. If not, the only question is what if anything will be left of Grutter.

Victor Goode is a board member of the Applied Research Center, which publishes, and an associate professor at CUNY Law School. He’ll be presenting at Colorlines’ Facing Race 2012 conference in Baltimore, Nov. 15-17.