Emily Wilkins
Scripps Howard Foundation Wire

WASHINGTON — Again and again the question was posed – if the University of Texas at Austin was striving for diversity through the admissions process, what was the school’s goal?

It was something of a Catch-22 for the lawyers representing the school in a case argued Wednesday at the Supreme Court. A young woman sued UT, claiming it rejected her application while admitting lesser-qualified non-white students.
UT defended the practice as necessary to reach “critical mass” – enough minority students for the university to offer students a beneficial and diverse experience.

But defining critical mass was hard to do. That is the standard set in the last major case the Supreme Court decided in race and university admissions, Grutter v. Bollinger.

In that 2003 case, the court said in a 5-4 ruling that having a quota is unconstitutional but allowed race to be a factor in the admissions process.

“We should probably stop calling it a critical mass then, because mass, you know assumes numbers,” Justice Antonin Scalia said. “Call it a cloud or something like that.”

The decision of eight justices could end affirmative action or hold colleges accountable for showing that policies to increase diversity are needed for the benefit of the student body.

Justice Elena Kagan recused herself, presumably because she worked on the case as solicitor general before being appointed to the court.

If there is a tie, the Fifth Circuit Court’s ruling in favor of UT would stand.

Abigail Fisher, who was not accepted to the school in 2008, although her sister and father had both attended, was present for the argument. She graduated from Louisiana State University.

Amicus briefs – arguments from parties not directly involved in the case – totaled 72 supporting UT and 17 supporting Fisher. About 100 colleges signed onto briefs supporting UT’s position.

The attorneys for both parties were careful to say they did not wish to see the Grutter ruling overturned.

But Justice Sonia Sotomayer questioned the line between promoting diversity to benefit all students and creating a process that is unfair to non-minority students.

“When do we stop deferring to the university’s judgment that race is still necessary?” she said. “That’s the bottom line of this case.”

In the Grutter case, former justice Sandra Day O’Conner wrote the majority opinion. With a more conservative court, Justice Anthony Kennedy may provide the deciding vote.

He asked Fisher’s attorney about other race-neutral methods UT could use to promote diversity and joined Chief Justice John G. Roberts in repeatedly questioning UT’s attorney about how the university would know when it has truly reached its goal of providing students with a diverse experience.

The justices also asked about the numbers of minorities at UT, which can tell two different stories.

One is that without race as a factor in admissions, a Texas law requiring colleges accept students ranked in the top 10 percent of their Texas high schools brings in the necessary diversity. Diversity increased after the law was put into place.
The second is that not all minorities increased their representation under that law. Some racial groups’ presence increased only after race once again became part of the admissions criteria.

Fisher’s attorney, Bert W. Rein, said that an estimated 1 percent, or 55 students admitted to UT each year, are admitted because of race, a number that could be recreated with race neutral admissions.

UT surveyed students when the top-10 law was in place but before race was part of the admission process. Most students said the campus needed more diversity. The lawyers did not say if the university had done a follow-up survey.

After the arguments, Fisher and her lawyers held a brief news conference.

Fisher said she was grateful the court heard her case, and she thanked her family and her lawyers.

“My parents always taught me that it is wrong to discriminate,” she said. “I hope the Supreme Court will decide that all future UT freshman applicants will compete without their race or ethnicity used in the school’s admissions process.”

UT President William Powers Jr. said Texas has come a long way since the days of segregation and the university is proud of being “on the right side of history.”

He praised Fisher for her bravery.

Before and after the arguments, a crowd of more than 100 demonstrated in favor of affirmative action.

Joshua D. Tang, 22, a UT senior was among the protesters. The Asian American Legal Defense Fund, which wrote a brief in support of UT, flew him to Washington. Tang said more diversity is needed at UT and race needs to be recognized as “an important fact in how a person lives their lives.”

Despite the importance of diversity to Tang, he was quick to point out how little it factored into UT’s admissions process but that it’s an important part of college life.

“Race is just a part of a part of a part of a seven-part system in our application process,” he said. “It couldn’t be any less important to UT’s admissions process.”

Paul Wolfson, a partner at WilmerHale law firm that submitted a brief on behalf of multiple Ivy League schools in support of UT, said universities are concerned that a ruling for Fisher would greatly complicate the admissions process.

“Many universities are concerned … universities will be held to an excessively rigorous standard of proof demonstrating that race-conscious policies are absolutely necessary to accomplish the educational benefits of diversity, and there’s no race-neutral means of accomplishing that,” Wolfson said at a press conference last week.

Reach reporter Emily Wilkins at emily.wilkins@shns.com.