A looming threat to affirmative action

College “affirmative action” plans – the programs used to select the incoming freshman class at many colleges and universities – appear to be in fairly deep constitutional trouble, just nine years after the Supreme Court had embraced them with modest praise.

An argument on Wednesday that ran some 20 minutes over the allotted time showed a court deeply divided over the validity of an admissions program at the University of Texas at Austin, but there were strong indications that a majority might well insist that the plan be overhauled, if it is not overturned entirely.

Beyond Texas, the case of the young white woman who challenged that plan after she was denied admission appeared to have raised – among perhaps a majority of the justices – some serious questions about whether the court’s decision in the historic case of Grutter v. Bollinger in 2003 will survive in anything like the form in which it was written.  The court’s most liberal justices fought valiantly Wednesday to defend that ruling, but they appeared to be outnumbered.

While Washington lawyer Bert R. Rein, representing challenger Abigail Noel Fisher, did not ask the court explicitly to overrule the Grutter decision, his critique of it – echoed in the questions of the court’s more conservative Justices – led one of the more liberal Justices, Sonia Sotomayor, to suggest that “you just want to gut it.”

In that decision nine years ago, decided by a 5-4 vote with a majority led by then-Justice Sandra Day O’Connor, the court explicitly endorsed the constitutionality of a college admissions plan at the University of Michigan Law School that took race into account as one factor among many, in an attempt to achieve “racial diversity” on the campus.

Two facets of that decision, though, appeared to be under siege during Wednesday’s argument.  One was its conclusion that public universities can make some use of race until they have received a “critical mass” of minority students sufficient to have a diverse campus.  The other was its declaration that judges should show considerable respect for the academic judgment of college administrators that there is a particular educational benefit in having a racially diverse student body.

The concept of “critical mass” was met with a sustained verbal assault by Chief Justice John G. Roberts, Jr., echoed with somewhat less intensity by other conservative members of the court.  Because the current majority of the court is deeply skeptical of the use of race in determining public policy, it is clear that that majority will insist upon a rigorous standard for determining when race can legitimately be used as a factor, and when its use must stop.

What the majority encountered Wednesday, however, were arguments by the University of Texas’ lawyer, former Solicitor General and now Washington lawyer Gregory G. Garre and current Solicitor General Donald B. Verrilli, Jr., that they could not put the concept in concrete terms, and definitely could not translate it into a number of minority students who could be judged as representing a “critical mass.”

And those two attorneys’ separate argument that courts should defer to the views of academia about the educational virtues of a racially diverse student body also drew a strongly skeptical response from a seeming majority of the court.

Because Justice Elena Kagan is not taking part in the case (she was involved with it earlier, while in the Justice Department), Ms Fisher’s case was heard by an eight-Justice court.  That raised the distinct possibility that the court could wind up divided 4-to-4 on the outcome.  That would have the effect of upholding a lower court decision that had found the Texas plan to be constitutional, but it would not set a precedent.   The court might then have to await some future college admissions plan that used race before it could again address the constitutional issue that they explored on Wednesday.

Although it makes the court somewhat uncomfortable to have to decide a case by a 4-4 vote when it cannot muster a majority for an agreed result, that option loomed in the background Wednesday as a potential outcome, given the justices’ apparently deep division.

Court observers thus focused closely on questions and comments by Justice Anthony M. Kennedy, who could help make a five-Justice majority against the Texas plan if he were to join the court’s more conservative members who are or were assumed to be critics of it.  Or he could make the vote 4-4 by joining with the court’s more liberal members.  It did not seem possible that the liberal bloc could attract enough votes to make a majority to explicitly uphold the Texas program.  Kennedy was, for the most part, neutral, but did make some comments or ask some questions showing his skepticism about Texas’ approach.

The justices will meet in a private conference on Friday to discuss and cast preliminary votes on the case.  If they do not divide 4-4, the opinion-drafting process could run on well into next spring.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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