The pom squad fires up the student cheering section during a football game between the Texas Longhorns and the BYU Cougars on Sept. 10, 2011 at Darrell K. Royal-Texas Memorial Stadium in Austin, Texas Photograph by Erich Schlegel/Getty Images.
As I listened to the Supreme Court wrestle with the lion that is affirmative action this morning, I kept thinking about the enduring view of the leaders of big business, small business, and the military. In 2003, the last time race in college admissions came before the court, Wall Street, Main Street, and retired military leaders said that diversity in college is crucial, for training people of different races and ethnic backgrounds and for exposing them to each other. This time, the same constituencies are back, calling diversity in school an economic imperative. Who, then, should get to decide how admissions play out in practice?the universities or the court?
It was Justice Stephen Breyer who framed the case of Abigail Fisher, a white applicant to the University of Texas-Austin who was denied admission four years ago, in terms of the job of the court versus the job of the schools. He pointed out that the court?s 2003 ruling, in Grutter v. Bollinger, was built to last 25 years, in the words of its author, Justice Sandra Day O?Connor. ?I know time flies,? Breyer said to Fisher?s lawyer, Bert Rein. ?But are you asking us to overrule? Grutter? And if so, why, given that the case ?took so much time and thought and that so many people across the country rely on it?? Later, Breyer said he?d tried to figure out exactly how many universities have affirmative action plans like the one permitted in Grutter, which allowed race to be a factor in actions if schools don?t resort to quotas. He?s not sure of the exact number, but it?s a lot.
Rein won?t concede that he wants the court to overrule Grutter. He also doesn?t agree when Justice Sonja Sotomayor says, ?You just want us to gut it.? But that?s the vulnerability in Rein?s argument: It?s hard to differentiate the way in which UT takes race into account from the way the University of Michigan approaches it, something the court permitted nine years ago. Indeed, Justice Ruth Bader Ginsburg calls UT?s policy ?more modest.? (We didn?t get to hear from Justice Elena Kagan today. She recused herself from the case.) ?The university admits up to 80 percent of its class by automatically admitting the top 10 percent of high school graduates across the state. The rest of the spots are allotted based on academic performance and an index of personal achievement that includes a host of attributes, from essays to leadership to community service to socioeconomic status and, yes race. It?s individualized and holistic?the magic Grutter words. No quota.
Here?s the conservative line of attack on UT, which Justices Antonin Scalia, Samuel Alito, and Chief Justice John Roberts take turns pursuing: How do you know when you?ve arrived? Grutter allowed universities to think in terms of admitting a ?critical mass? of minority students. How many is that?
Sotomayor brings up a survey UT did, which showed minority students feel isolated. Breyer says that before Grutter, UT was 4 percent African-American and that today it?s 6 percent African-American, compared with 12 percent of the population of Texas. The school still has a ways to go toward admitting its fair share of black students? Well, that depends. Sotomayor thinks the demographics matter?she says Rein ?can?t seriously suggest? otherwise. But when he doesn?t contradict her, Scalia does. ?Why don?t you seriously suggest that the demographic makeup of the state has nothing to do? with determining whether it has a critical mass of minority students, Scalia urges.
The problem for UT is that if critical mass turns into a specific number, it ?sounds an awful lot like a quota,? as Sotomayor puts it. This is a trap that Greg Garre, the lawyer for UT, tries hard not to fall into. He goes back to the university?s study of minority students? feelings of isolation and to the school?s lower minority enrollment in earlier years. Finally, pressed, he throws out the figure of 20 percent for critical mass. He must mean this for each minority group separately, since the majority of UT?s student body is now made up of minorities, if you include Asians.
Source: http://feeds.slate.com/click.phdo?i=4f132b84555dfa8aee09f1093c252813
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