This column by ACRU Senior Legal Analyst Ken Klukowski was published on October 11, 2012 on Breitbart.com.
Government preferring one racial group over another in college admissions may be about to end, in what would be a historic move by the Supreme Court. Chief Justice John Roberts said that Supreme Court precedent requires that "there has to be a logical end point to your use of race. What is the logical end point? When will I know that you've reached a critical mass?" The government's inability to answer that question might mean that the end point will come in a few months when the Court hands down its decision.
Abigail Fisher was denied admission to the University of Texas in 2008. Since she didn't qualify for automatic admissions offered for any Texas high school student graduating in the top 10% of her class, she instead competed against the general applicant pool, in which members of two racial groups were given a preference over her as a white woman. She sued, alleging that this affirmative-action program is reverse discrimination forbidden by the Equal Protection Clause of the Constitution's Fourteenth Amendment.
In Fisher v. University of Texas at Austin, the justices are revisiting the issue of governmental racial preferences. In 1978, a deeply-fractured Court upheld affirmative action so long as government does not go so far as to use quotas, and in 2003 the Court again upheld a government role for race, in a 5-4 decision by Justice Sandra Day O'Connor in Grutter v. Bollinger.
In her opinion, O'Connor crafted a new "critical mass theory," that racial minorities will not fully participate in school activities to the benefit of the whole student body unless there are enough of them to constitute a critical mass, suggesting the role for government to selectively prefer minorities. She also said that social changes made race less necessary over time, and that 25 years from 2003 (the year 2028) racial preferences may no longer be justified.
O'Connor was seated in the courtroom Wednesday, about eight feet from my seat, as she watched her replacement--Justice Samuel Alito--signal his opposition to government preferring one citizen over another because of skin color, and that he rejected the arguments of both the university's lawyer and President Obama's lawyer.
Alito asked, "How do you justify lumping together all Asian Americans? Do you think--do you have a critical mass of Filipino Americans? Cambodian Americans?" He pointed out the absurdity of having one group, called "Asians," and giving them no preference whatsoever while two other groups--but only two, blacks and Hispanics--are given preference not only against whites, but also against other minority groups.
Justice Antonin Scalia reaffirmed his 2003 opposition to the critical mass theory, rejecting the idea that a minority student would be withdrawn unless enough of his classmates are also minorities. "If you're in a state that's only 1% black that doesn't mean that you're not isolated so long as there's 1% [blacks] in [your college] class."
Justice Anthony Kennedy said that it although the university insisted that race was only one of many factors in admissions, it sounds like the university's true policy is "what counts is race above all." In stereotypical moderate form, Kennedy has long said that he believes there could be some governmental role for race, but that each program he looks at fails to be narrowly tailored to properly play that role.
Justice Clarence Thomas was customarily silent, but he's made perfectly clear in many cases that he considers government use of race unconstitutional. Taken with the others, the total is five votes for Fisher.
Although it seems clear that Abigail Fisher will beat the University of Texas by a 5-4 vote, it's unclear how broad the Court's ruling will be. Fisher's lawyers--Burt Rein and Will Consovoy--are asking the Court broadly to declare government use of race invalid in many respects, but did not push the justices to overrule Grutter altogether.
How far those five justices are willing to go in this case is anyone's guess. We'll likely find out early next year.