Catch Twenty-Wu? The Oral Argument in Fisher v. University of Texas and the Obfuscation of Critical Mass

Sheldon Bernard Lyke*

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Introduction

On October 10, 2012, the Supreme Court of the United States heard oral argument in Fisher v. University of Texas at Austin[1]—the latest challenge to race-conscious affirmative action university admissions programs.[2] Court watchers highlighted that during the hearing, the Justices spent considerable time attempting to understand the meaning of a “critical mass” of minority students enrolled in universities and registered for individual courses.[3] Critical mass emerged from the Justices’ questions in oral argument in a sort of catch-22. On one hand, it faced critiques that it lacked a quantifiable threshold that judges could review. Any attempts, however, to quantify critical mass would place the concept into the unconstitutional realm of impermissible quotas.

Grutter's Denouement: Three Templates from the Roberts Court

Ellen D. Katz*

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This month, the Supreme Court will hear argument in Fisher v. University of Texas at Austin,[1] a case that is widely expected to end race-based affirmative action in higher education. A decade ago, Grutter v. Bollinger[2] upheld that practice, holding that public universities and colleges could lawfully include race as one factor in admissions decisions to foster racial diversity on campus. At the time, the Court speculated that such diversity would be achieved in twenty-five years and that race-based affirmative action thus would no longer be necessary in 2028.[3] The Roberts Court now appears ready to ditch the practice much sooner.

This prospect should come as no surprise. Vulnerable from the start, Grutter was the product of a deeply divided Court and has lacked majority support among the Justices ever since its author, Justice O'Connor, retired in 2005. Since then, the Roberts Court has voiced its hostility to race-based criteria in a host of contexts and has also repeatedly shown its willingness to displace precedent it dislikes.[4] Adding the fact that Fisher contains none of the characteristics that typically justify Supreme Court review and it looks like a safe bet that the Roberts Court did not take the case to affirm the wisdom of diversity-seeking affirmative action. It is far more likely that it will use Fisher as a vehicle to condemn Grutter and the type of decisionmaking it fosters.

Affirmative Action, Justice Kennedy, and the Virtues of the Middle Ground

Allen Rostron*

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When the Supreme Court hears arguments this fall about the constitutionality of affirmative action policies at the University of Texas,[1] attention will be focused once again on Justice Anthony Kennedy. With the rest of the Court split between a bloc of four reliably liberal jurists and an equally solid cadre of four conservatives, the spotlight regularly falls on Kennedy, the swing voter that each side in every closely divided and ideologically charged case desperately hopes to attract. Critics condemn Kennedy for having an unprincipled, capricious, and self-aggrandizing style of decision-making.[2] Though he is often decisive in the sense of casting the crucial vote that determines a case’s outcome, his opinions can be maddeningly indecisive in the sense of failing to establish clear rules of law. Yet in Fisher v. University of Texas, Kennedy’s irresolute nature may prove to be a blessing. By taking a middle-ground position that significantly sharpens judicial scrutiny of affirmative action programs but does not absolutely bar them, Kennedy can finesse the issue in a way that accommodates the American public’s conflicted feelings about racial preferences, but simultaneously forces everyone to start thinking more seriously about how racial components of affirmative action can be phased out in a manner that will minimize disruption and bitterness.

Diversity and Race-Neutrality

Kenneth L. Marcus[*]

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The most important, elusive, and misunderstood aspect of federal affirmative action jurisprudence is the requirement of “serious consideration.”  Before commencing or continuing race-conscious, nonremedial affirmative action plans, public institutions, including colleges and universities, must apply “serious, good faith consideration” to workable race-neutral alternatives (RNAs).[1]  This requires not only that less racially intrusive alternatives be unavailable, but also that institutions establish this unavailability through a largely undefined process of “serious consideration.”[2]  The measure one should use to establish this (un)availability remains unknown.  In higher education, since RNAs typically tout diversity, it is easy to assume that they should be measured against their ability to increase the representation of previously underrepresented student racial and ethnic groups.  In fact, such measures raise serious constitutional problems to the extent that they indicate that the actual goal of the RNA’s is racial balancing.  This Essay argues that because the only legally viable purpose for nonremedial race-conscious admissions practices are “the educational benefits that flow from a diverse student body,”[3] only direct measures of those educational benefits are proper for “serious consideration.” In other words, RNAs must be evaluated against their ability to raise actual educational achievement.