The U.S. Supreme Court heard oral arguments today in Fisher v. University of Texas at Austin (UT), a case involving the constitutionality of the university’s use of race and ethnicity in its admissions process.
The case is on appeal from the U.S. Court of Appeals for the Fifth Circuit, which upheld a 2009 lower court ruling that UT did not infringe on the civil rights of two white students who were refused admission to the university. At issue is whether UT's admissions process violates the Equal Protection Clause of the 14th Amendment of the Constitution.
ACE General Counsel Ada Meloy, who attended the argument, noted that all the justices participating were very active and pressed counsel for both sides as well as the Solicitor General, who was arguing on behalf of the United States and in support of UT. The proceedings did not signal any clear likely result.
As The New York Times pointed out, today’s questioning was “exceptionally sharp,” but the justice who perhaps holds the swing vote—Anthony Kennedy—“tipped his hand only a little, asking a few questions that indicated discomfort with at least some race-conscious admissions programs.”
Lyle Denniston of SCOTUSBlog summarized the proceedings: “Affirmative action is alive but ailing, the idea of ’critical mass’ to measure racial diversity is in very critical condition, and a nine-year-old precedent may have to be reshaped in order to survive.”
Attorneys for Abigail Fisher, the one remaining petitioner, said the court does not need to overturn Grutter v. Bollinger, the landmark 2003 University of Michigan case that upheld some uses of affirmative action, in order to rule in favor of their client.
The court’s liberal-leaning justices responded that the cases are hard to separate, with Justice Sonia Sotomayor telling Fisher attorney Burt W. Rein, “You don’t want us to overrule Grutter. You want us to gut it.”
Both lower court opinions noted that UT's plan closely follows the holistic review admissions process approved in the Michigan case. ACE filed amicus briefs in both the Michigan and UT cases.
In a letter to the editor of The New York Times on Sunday, ACE President Molly Corbett Broad noted the conclusion of ACE’s UT brief was that the court should “reaffirm Grutter and protect colleges’ and universities’ freedom to pursue their respective missions.”
“It would be detrimental to our economy and our society at large if the court does not,” she added.
A decision in the case is expected in spring 2013.
For more media reaction to today’s arguments, see the following:
ACE’s Storify page, Supreme Court to Hear Fisher v. The University of Texas at Austin
The Transcript of the Oral Argument
Supreme Court Divided Over Affirmative Action in College Admissions
The Washington Post (free reg. req.) (Oct. 10, 2012)
Supreme Court Justices Challenge Texas University Race Policy
Reuters (The Chicago Tribune, free reg. req.) (Oct. 10, 2012)
Supreme Court Weighs Quotas in Affirmative Action Case
USA Today (Oct. 10, 2012)
Supreme Court Justices Cast Doubt on Texas Program That Looks at Race in College Admissions
The Associated Press (The Washington Post, free reg. req.) (Oct. 10, 2012)
Supreme Court Hears Arguments Over Use of Race in Deciding UT Admissions
The Dallas Morning News (Oct. 10, 2012)