Conservative Justices Prepare to 'Gut' Affirmative Action

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With Sandra Day O'Connor off the court, a system upheld just nine years ago will survive, if at all, as a shell of its former self.

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Protesters outside the Supreme Court on October 10, the day the Court began hearing argument in Fisher v. University of Texas (Jose Luis Magaua/Reuters)

"There are facts and there are facts, aren't there?" Justice Antonin Scalia asked in Wednesday's oral argument over affirmative action.

The question specifically referred to parts of lower-court opinions in Fisher v. University of Texas in which judges described the University's affirmative action program. But they could serve as an epigraph for the entire argument, which took place at three levels.

There are the facts about Texas's affirmative action program, a limited use of "race as a plus" that has modestly increased its enrollment of African Americans and Latinos since it was instituted in 2005. Those facts show an effort by the university to conform its program to Grutter v. Bollinger, the 2003 case that approved some use of race in higher education admissions.

Then there are "facts" -- unshakable beliefs about the evils of affirmative action held by at least three of the Justices. Justice Clarence Thomas (who as usual did not speak at argument) has written that universities court minority admits simply as a matter of "racial aesthetics."

Justice Samuel Alito, from his questions Wednesday, seems to believe affirmative action represents a liberal determination that "African Americans and Hispanics who come from privileged backgrounds" deserve "a leg-up against, let's say, an Asian or a white applicant whose parents are absolutely average in terms of education and income." Justice Antonin Scalia, again judging by Wednesday, regards any affirmative action program as a system of "racial quotas" administered by officious bureaucrats.

And then there is the fact: UT's program, like all affirmative action programs, relies on racial classifications. Applicants are allowed (though not required) to check a box indicating their race. That fact enrages Chief Justice Roberts, who noted acidly that race is "the only one of [the University's] holistic [admissions] factors that appears on the cover of every application."

By the argument's end, one outcome was clearly off the table: a ringing reaffirmation of Grutter's holding that the benefits of racially diverse admissions programs are "not theoretical but real," resulting in better education, a stronger military, and a more successful economy.  Even though Grutter is nine years old, these programs are not long for the world.  At the time that case was decided, the Grutter Court prophesied that affirmative action would be unnecessary in 25 years. Nine have passed; but in the interim, Justice Sandra Day O'Connor, author of Grutter, retired from the Court.  The prophesy, it now seems, was actually couched in dog years.

The current case is a particularly terrible vehicle for overturning Grutter: It was brought by a plaintiff who probably wouldn't have gotten into the University of Texas regardless of whether race was used, and who seems to have no real standing to bring a suit; it concerns a state university with a particular statutory admissions policy few other universities have; and it is being heard by a Court that is down one justice. (Justice Elena Kagan, who almost certainly worked on this case as Solicitor General, recused herself.) The Court could split 4-4. If that happens, the Fifth Circuit's decision below -- upholding the program -- will be affirmed.

So affirmative action may stagger on after this June, like a zombie in The Walking Dead. But the conservatives want it gone, and they seem to have the votes.

The factual peculiarity of this case involves state law. In 1996, the Fifth Circuit, in a case called Hopwood v. Texas, ordered the university to stop using race at all in admissions. The Supreme Court denied review. As a result, African American and Latino numbers at UT declined. The Texas Legislature responded in 1997 with the "10 percent plan," in which any student who graduates in the top 10 percent of a Texas public high school is guaranteed admission to UT.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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