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Supreme Court fight over affirmative action focuses on one big question

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One question dominated the Supreme Court’s hearing Wednesday of a case that could overturn the use of affirmative action in university admissions: How does a university know when it has reached the right level of student diversity?

The question aims at the heart of a previous Supreme Court opinion, Grutter v. Bollinger (2003), which permitted the University of Michigan to consider race as long as it was one factor among many considered in a student’s application. In that case, the court wrote that colleges and universities had a right to seek a “critical mass” of minority students so that they could have “the substantial, important, and laudable educational benefits that diversity is designed to produce, including cross-racial understanding and the breaking down of racial stereotypes.”

It has been nine years since the court decided in favor of the university in that case. But the likelihood that it would overrule its previous ruling—at least in part—seemed possible in the wake of arguments for Fisher v. University of Texas on Wednesday, as justices debated whether the idea of critical mass is a worthy and measurable concept or a blank check for universities to use race as they please. The outcome could have major implications for higher education.

“It’s a huge deal,” Richard Lempert, a professor of law and sociology at the University of Michigan and a supporter of affirmative action, said in an interview about the case. “This is destroying part of the American dream.”

A white student, Abigail Fisher, brought the case after her application to the University of Texas-Austin was rejected in 2008. In her lawsuit, she questioned whether the university’s admissions system uses race unnecessarily. “To purposefully lower the bar for one or two specific races regardless of the background of those children is absolutely wrong,” Edward Blum, a friend of the Fisher family and an affirmative action opponent, told The Hechinger Report.

The University of Texas-Austin, the state’s flagship public university, admits most of its students under a state program that gives automatic admittance to all Texas students who graduate in the top 10 percent of their high school class. Because many high schools in the state are racially isolated, with either high percentages of whites and Asians, or high percentages of blacks and Hispanics, the top 10 percent program yields a diverse group of applicants. But the university has argued it’s not enough, and that its admissions process—which considers race for a small subset of applicants—has boosted its percentages of minorities substantially.

“What we’re concerned with is that universities have read [Grutter] to be a green light,” the plaintiff’s lawyer, Bert Rein, said. “That unchecked use of race … needs to be corralled.”

Several of the more conservative justices grilled the lawyer for the University of Texas, Gregory Garre, about how the school would know when to stop giving preferences to underrepresented minorities. “When will we know you’ve reached a critical mass?” Chief Justice John Roberts asked.

But Justice Sonia Sotomayor wanted to know how the school could name a target number without being accused of setting a racial quota, which the court has ruled is unconstitutional. “You don’t want to overrule Grutter, you just want to gut it,” Sotomayor said to Rein.

Justice Anthony Kennedy will most likely cast the deciding vote in the case. (Only eight of nine justices heard the case, as Justice Elena Kagan has recused herself because she worked on the case before being elevated to the Supreme Court; a tie would leave the lower court ruling, which upheld the university’s plan, in place.)  Kennedy has condemned racial quotas and dissented in the Grutter ruling. But he has also written that “diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue” and criticized his colleagues for “an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account.”

On Wednesday, he suggested there were “inconsistencies” in the plaintiff’s case, including its assertion that the university’s affirmative action plan only affects a small group of students. “If it’s so few, then what’s the problem?” he said.

But later, he joined an exchange challenging the extent to which race factored into the university’s decisions to admit individual students: “I thought that the whole point is that sometimes race works as a tiebreaker,” he said. In a 2007 case, the court ruled against the use of race as a tiebreaker in K-12 school admissions.

Helen Knowles, an assistant professor at Grinnell College, who has written a book about Kennedy, said it was unlikely Kennedy would hand a clear victory to either party. “One of the things he tries to do is balance, is to find a happy medium between rejecting race-based absolutism and his belief that in race-based classification cases that you have to use strict scrutiny,” she said.  “I think he’s going to look at the 10 percent plan and say that works fine.”

Choquette Hamilton, associate director of development in the university’s African Studies Department, predicts that even if affirmative action survives this challenge, the debate will continue. “This is going to be an ongoing battle until affirmative action no longer exists, or it’s no longer needed,” she said. “I hope it’s no longer needed before it’s eradicated.”

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[...] student who sued. Here’s my story about that student on the Atlantic‘s website. And my dispatch from the argument [...]

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