The Supreme Court made headlines this past summer when it issued a ruling on the constitutionality of the individual mandate that is at the core of the Affordable Care Act. This session, the Supreme Court will revisit a controversial issue: affirmative action. Last week, oral arguments were heard in the case of Fisher v. University of Texas at Austin, in which Abigail Fisher challenges the University of Texas at Austin’s use of race as a factor in the undergraduate admissions process. In the spirit of Justice John Robert’s judicial conservatism, any discussion of the case and the implications it may have on affirmative action must begin with the precedent that exists already. The most recent ruling occurred during the William Rehnquist court in 2003: Grutter v. Bollinger. The details are similar: Barbara Grutter challenged the University of Michigan Law School’s use of race as a factor in the admissions process, claiming that she was rejected because of the use of race as a predominate factor and that the university had no reason to justify their use of race.
In turn, the Grutter v. Bollinger decision relies on an earlier case, the 1978 decision in Regents of the University of California v. Bakke. In the case, Allan Bakke alleged that he had been discriminated against in the University of California-Davis School of Medicine’s consideration of his application for admission. UC-Davis’ admissions process reserved 16 of the 100 admissions for minority students. The decision ruled that the use of a quota in the admissions process was unconstitutional because it removed minorities from competition with non-minority applicants and thereby discriminated against non-minorities. However, the decision did not bar the use of race as a factor for admission entirely, citing Harvard’s admissions program — which had filed an amicus curiae — as an example of a program that uses race only as a part of a “holistic review.” Thus, after Bakke, race could be considered, but defined quotas were barred.
The Grutter decision 25 years later upheld the key distinction laid out in Bakke. Justice Sandra Day O’Connor, who recently retired from the U.S. Supreme Court, wrote the majority opinion and affirmed that universities have a compelling interest to obtain diversity. O’Connor used the term “critical mass” to describe the desirable number of minority students. O’Connor’s definition of desirable levels of diversity does not rely on the benefits to minority students of their admission but rather to the institution as a whole. This is the crux of the difference between a quota — as was barred in Bakke — and a critical mass. Importantly, O’Connor’s opinion admitted that in the future, admissions should strive to become race-blind at the time such that it was no longer necessary to achieve the benefit of diversity in the institution. Should the conditions for a post-racial society be met, it is conceivable that admission decisions could then truly be race-blind without impacting diversity. O’Connor postulated that this time may be some 25 years in the future. Since her opinion, nine years have passed. America has elected the first African-American president. These concepts are central to any decision that the court may find regarding Fisher.
Oral arguments last week centered around the questions laid out in O’Connor’s decision in Grutter. The university spent much of the oral argument defending the use of the “critical mass” concept. On one hand, it cannot be defined as a number or percentage — or risk drawing dangerously near being interpreted as a quota and unconstitutional under Bakke. On the other hand, to suggest that the university had met a critical mass condition would imply under O’Connor’s ruling that the time to transition to race-blind admission had come. The university sought to define critical mass in terms of the perceived isolation of minority students enrolled in the institution, as determined by social science research. Fisher’s lawyer argued that the university had failed to adequately explain the conditions for reaching critical mass — essentially inviting them to define it in a way that would render the practice unconstitutional — either because it was too similar to a quota or because they had achieved the critical mass.
Matter of standing aside, the justices must weigh the consequences of any decision they reach. Ideally, by 2012 the U.S. would have reached a post-racial society, and every measure should be taken to achieve this noble goal. But by numerous metrics, this simply hasn’t occurred. The achievement gap in education, the income gap, the unemployment gap and numerous other disparities between minority and non-minority populations indicate that the U.S. is still far from a post-racial society. Ending affirmative action too early could erase the gains that have been achieved thus far. In a final consideration, should colleges be barred from considering race prematurely, there are numerous ways around explicit consideration of race: geography, income and even the details in an application to infer minority status and attempt to maintain diversity — which there is little question on inherent value. However, these are imperfect and open the door for advantages given to non-minority students in predominately minority school districts. It is a matter of justice — reconciling disparate and apparently opposed rights.