October 10, 2012

The Fisher oral argument: Argument day

By Joshua P. Thompson Senior Attorney

There were three overriding issues that dominated oral argument today: (1) Whether Abigail Fisher has standing; (2) How can the University know it achieved a critical mass; and (3) whether the racial preferences are designed to help the affluent. The first issue is clearly a problem for the plaintiff. The last issue is clearly a problem for the University. It is the middle issue, however, that both sides struggled with, and which is likely to decide the case.

The three liberal justices began the questioning of plaintiff’s counsel on standing. Since Ms. Fisher has already graduated, how will injunctive and declaratory relief–preventing the University from using race–help her? Counsel for Ms. Fisher handled this question the best he could. First, the primary injury to Ms. Fisher is a constitutional one–she was treated differently on the basis of her race. Second, to the extent it matters, Ms. Fisher still has a claim for $100 for the cost of her application packet to the University. Third, the district court bifurcated the case, and decided to address liability first. Only if they prevail, will they have to prove damages.

These answers are good, but I think he missed the main one: if a student applicant loses her standing the moment she enrolls/graduates from a different University, this issue will continue to evade review for eternity. All in all, however, plaintiff’s counsel handled this thorny issue as best he could. If Ms. Fisher is going to lose this case–if the Chief Justice makes a last minute flip-flop–standing is an easy/clean way for the Court to do it.

The most pointed question against the University came from Justice Alito, and it concerned an issue that has been in the background of this whole litigation. Texas’s much ballyhooed “Top Ten Percent” law results in over 25% of the class being comprised of “under-represented” minorities. Despite this large number, the University still uses race for the remaining slots it has open. The University defends this use of race, on the grounds that it lets in the type of minority that doesn’t go to a majority-minority high school. In other words, the preference is needed for the affluent “under-represented” minorities. Since the University has “enough” minorities from the poor schools through the Top Ten Percent law, it needs to get more rich minority kids through racial preferences.

This rationale, of course, turns the whole notion of affirmative action on its head. Instead of helping the poor student who has been subject to poverty, societal discrimination, and a poor family life, the racial preference is going to the affluent child. In other words, it’s not the black child from Compton who gets a racial preference, but the black child from Beverly Hills. The University had no real response to this point. Indeed, it touted this aspect of its preference during merits briefing.

The final issue–which both sides struggled with–is the Grutter concept of “critical mass.”  In Grutter, the Court held that the state has a compelling interest in enrolling a “critical mass” of under-represented minorities at the law school. The problem is that the term “critical mass” is entirely subjective. There is no real precision to it. So, the Court asked counsel for both sides: what is a critical mass and how should it determine when it is met?

The problem from the plaintiff’s side is that it is hard to fault the University for failing to set a “number” when the Court has consistently held that such strict quotas are unconstitutional. Justice Sotomayor hammered plaintiff’s counsel on this point repeatedly.  How can you on the one hand argue that the University’s plan fails strict scrutiny because it doesn’t define what a critical mass is, while on the other hand, tell it that it cannot set a number because that would be a quota? It is a fair point.

The problem from the Univerity’s side, is that if you don’t define what constitutes a “critical mass,” how do you know when you have achieved it? How is a court to scrutinize the means chosen to achieve a “critical mass,” if we don’t ever know what that is? At one point, Justice Scalia quipped, “we should stop calling it a ‘critical’ mass. Perhaps ‘cloudy’ mass would be better.”  The University had no real defense to this point. It wants to use race within the limits of Grutter. The problem is that the limits of Grutter are so ambiguous, that it is impossible to know where critical mass ends and unconstitutional discrimination begins.

Which gets me to the only answer to the critical mass question that makes sense–the critical mass concept of Grutter has got to go. It is impossible for both Court and universities to apply consistently. Chief Justice Roberts said it best in Parents Involved:  The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

I’ll have a lot more on the day’s events, my experience, predictions, and a host of other issues after I take a nap.

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