"Extremely inappropriate": The Supreme Court and the sneaky plot to kill affirmative action

The Court may make affirmative action "practically impossible," NAACP senior counsel Rachel Kleinman tells Salon

Published December 11, 2015 1:00PM (EST)

Antonin Scalia             (Reuters/Kevin Lamarque)
Antonin Scalia (Reuters/Kevin Lamarque)

Earlier this week, the Supreme Court heard oral arguments for Fisher v. University of Texas at Austin, a case that, many experts say, could lead to the destruction of affirmative action at public universities as we know it. Even if you're not much of a Court-watcher or civil rights buff, you probably saw something about it in the news; it was during oral arguments that Justice Antonin Scalia wondered aloud if African-American students might be better served on "a slower track."

As the New Republic's Brian Beutler observed, Scalia's comment wasn't quite as bad as you may think (it wasn't good, mind you, but it wasn't as bad as some of his critics have suggested). But Scalia's remark, and the outrage it inspired, was nevertheless representative of how volatile are the issues at the heart of the Fisher case. American politics is often about the legacy of white supremacy — and often concerns how that legacy should be atoned for — but rarely is the subtext so in-your-face.

Because this is a fraught issue, and because it's likely to inspire more heat than light, Salon reached out to Rachel M. Kleinman, senior counsel for the NAACP's Legal Defense and Education Fund, to get a sense of both the policy and the politics of Fisher v. Texas. We also touch on how supporters of affirmative action are tailoring their arguments to most likely persuade what is fundamentally a very conservative Court. Our conversation is below and has been edited for clarity and length.

A lot of readers are going to see Fisher v. Texas and think it sounds vaguely familiar. Why?

So, this is actually the second time the Supreme Court is hearing this case. It did so in 2012. The first time it heard the case, the Court reaffirmed the educational benefits of diversity, but they clarified one of the legal standards that need to be used when deciding whether any specific admissions program is constitutional.

So they sent it back to a lower court to apply that standard. The lower court did that again; they once again found that the University of Texas’ admissions program, which includes a modest consideration of race, is constitutional. And Abigal Fisher, who is challenging the admissions process at the University of Texas, appealed again to the Supreme Court; and the Supreme Court took the case again for a second time.

So the basic argument hasn't changed, really, despite all the time that's passed. What is that argument?

What’s being argued over here, generally, is the University of Texas’ program for admitting students.

The University of Texas has a somewhat unique process for admitting students, in that the majority of their class is admitted through, what they call "the Top 10 Percent Program." This program admits approximately the top 10 percent of the class of every high school in Texas. So, if you’re in that top 10 percent, you get into the University of Texas at Austin.

The top 10 percent program does not fill the entire class. It leaves some number of spots — and it’s a varying number of spots according to Texas State Law — available for the rest of the class. It is that piece of the admissions program that is being challenged.

And what's the challenge?

The university does a holistic review of every candidate’s application, which means looking at test scores, looking at grades, community service, looking at gender, looking at if somebody’s first generation — anything like that. One of the factors that can be considered at this stage is race. (It’s a very modest consideration of race; when you look at their specific process, it’s a factor of a factor of a factor.) That modest consideration of race is what Abigail Fisher is challenging.

Who is Fisher?

She’s a white woman who did not get in through the top 10 percent program and then did not get in through the holistic review measure. She says that it’s an unconstitutional admissions process because of the consideration of race, and that she was denied her ability to get into the school because of her race.

Do we know how the Court is likely to rule? Are there any justices who are perceived as on the fence?

It’s hard to say. Any time a Supreme Court takes up a case like this we in the civil rights community worry. We are particularly alarmed this time because it seems that this case had been resolved, and no one really expected [the Court] to take it up again. The last time this was heard, the Court ruled a 7-1 majority to send it back down to the other court. The majority opinion also included an embrace of the Court’s past jurisprudence [on affirmative action].

Which was what?

Holding that diversity can be a compelling interest that a university can [constitutionally] pursue. That was very encouraging, and we thought that as far as this case went that would be the end of the road. The fact that it’s been taken up again is certainly alarming. It definitely indicates that [some on the Court believe] its work was not done first time around.

To that point, it's not even clear that Fisher should have standing in this case, is it?

Yes, there is still a sort of question as to whether or not Abigail Fisher even has standing to be pursuing this particular case. Fisher graduated from LSU in 2012. The only relief she’s seeking in this case is a refund of her application fee, but [the part of the university's application being challenged] didn’t actually cause her to pay for the application fee in the first place. So a refund wouldn't address her injury.

The Court did hear that argument before, and they didn’t rule on it. So they’ve been silent. They’ve obviously now taken this case for the second time, so that probably does imply, to some degree, they’re thinking about standing. At the very least, this seems like an extremely inappropriate vehicle for making sweeping decisions about the use of race in admissions throughout the country.

And the case is being funded by conservative activist Edward Blum, it's worth noting. 

Yes. The conservative activist who brought this case is also behind the two other affirmative action cases, which are now sort of percolating in the lower courts (one against UNC and one against Harvard).

If the Court ruled in Fisher's favor, how much of a break from precedent would that be?

It would be an extremely significant break from precedent.

In this case, [Fisher et al.] were making this sweeping [argument] that race cannot be a factor in the admissions program. The most likely outcome is probably more incremental. The Court has been sort of fine-tuning its work in this area — and narrowing, and narrowing and narrowing the ways that race can be considered.

There’s also a possibility that the Court could strike down only the University of Texas’ program, say that’s following its past precedents, and outline the "proper" consideration of race. But that would have such a chilling effect on other universities, or make the bar so high for considering race that it becomes practically impossible.

The conventional wisdom seems to hold that Justice Kennedy is, once again, the swing vote. So how do you make an argument against Fisher's claims that will jibe with his generally libertarian leanings?

Kennedy's never said that affirmative action, or the consideration of race while trying to achieve diversity, should not be allowed. He has concerns about how and when. He seems to feel very strongly about diversity being a compelling interest, [that] it should be pursued — especially by institutions of higher learning. In this case, if you look at [the university's] specific record, Texas has been following his prescription of what you do need to do before you consider race, and how you can consider race in admissions.

The other thing that we’re hoping will appeal to Kennedy is an argument that we feel very strongly about in the civil rights community: the idea that the non-consideration of race in admissions can really be an affront to an individual's dignity. If you’re applying to a college or university, sometimes in check-boxes, or in other ways, you’re supposed to give an account of your identity. And to be told that there’s one little factor, race, that you cannot mention — no matter how much you feel like that is a part of your identity — that can be really harmful for somebody’s own sense of who they are, their own sense of dignity.

Many people, especially in this sense of current environment, where it’s very clear how much race matters — both on campuses and in the outside world — can feel very strong about their racial identities, and can feel a lot of harm from not being able to express them. That’s something I think Kennedy will be able to understand, much in the way that he understood the harms to dignity in the marriage equality cases that were heard in the last couple of years.

Justice Scalia Said Black Students Might Do Better At 'Slower-Track' School

By Elias Isquith

Elias Isquith is a former Salon staff writer.

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