Court Takes Another Look At Affirmative Action

A new case taking on affirmative action in higher education is set to be heard in the Supreme Court this fall. In 2003, the court ruled that universities could consider racial diversity in admissions. But today the make-up of the court is very different. Host Michel Martin discusses the case with two law school deans.

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MICHEL MARTIN, HOST:

I'm Michel Martin, and this is TELL ME MORE from NPR News.

Today, we will take on one of this country's long-running hot button issues affirmative action. The Supreme Court announced earlier this week that it would consider a new case on affirmative action. The case is Fisher v. the University of Texas. Abigail Fisher charges that she was denied admission to the universities flagship campus at Austin because of the school's race conscious admissions policy.

You may remember that the High Court last took up this issue in 2003 in a case involving the University of Michigan Law School. But the make up of the court is very different. And perhaps the country is too.

So, we wanted to get perspective first from two prominent legal minds and educators. Kevin Johnson is dean and professor of public interest law at the University of California Davis School of Law. Also with us, Jim Chen. He is dean and professor of law at the Brandeis School of Law at the University of Louisville in Kentucky. He's also a former clerk for U.S. Supreme Court Justice Clarence Thomas. Gentlemen, I thank you both so much for joining us.

KEVIN JOHNSON: Thanks for having me.

JIM CHEN: Thank you very much.

MARTIN: Dean Johnson, I'm going to start with you and ask, what's the central issue that the court will be considering in this case?

JOHNSON: Well, I think the central issue ultimately will be whether the Supreme Court's decision in Grutter v. University of Michigan, which allows race to be one factor considered in the admissions process, is still good law. I think that the University of Texas in this case had a multi-factored, very detailed, very careful admissions process where race was one factor for some part of the admitted class at the University of Texas. And the question is, ultimately, whether that's constitutional or not.

MARTIN: Dean Chen, can I ask what would cause the court to take up this question and at this time? Has something changed since 2003 other than the make up of the court that would want them to that would cause them to reconsider this issue?

CHEN: Well, the court does, from time to time, reconsider things on a very short timeframe. But I would say that the original decision when Justice O'Connor wrote. She says, this is good for about one generation and it may well be that eight years or nine years would be for these purposes on an issue moving this quickly in a society might be a little bit of an acceleration of that 25-year clock.

MARTIN: Dean Chen, I think that the scuttlebutt around this issue is - for people who perhaps are not that closely connected to the court, but who watch this closely - is that the court has actually been looking for an opportunity, let's say, to overturn the prior decision because the court is considered to be more conservative than it was in 2003. Sandra Day O'Connor, of course, was replaced by Samuel Alito who has made it very clear that he's a skeptic of affirmative action. So, do you think that, that's a fair assessment?

CHEN: Well, I'd like to speak a little bit about how the court is made up and how the court selects its cases, because that might help shed some light on why this case has come up before the court at this time.

MARTIN: Please do. And your experience as a former clerk would certainly be helpful in that. So, thank you for that.

CHEN: Sure. So, the Supreme Court is, of course, nine justices. And the interesting thing about that number nine is that it doesn't take a majority to agree to hear a case. All it takes is four votes. And right now, if you look at the composition of the court, what you have is at least four votes. Chief Justice Roberts, Justice Scalia, Justice Thomas and Justice Alito as being interested in having another shot at the issue in Grutter.

And now, the other question is whether they firmly believe that Justice Kennedy whom I think we can predict to be the likely swing vote on this particular issue would go to the side affirming Grutter.

And if they don't believe that this is a certainty and they're willing to revisit the issue, I don't think that, politically speaking, the side that might want a shot at reconsidering Grutter feels it has anything to lose by picking this case and putting it back on the docket.

MARTIN: If you're just joining us, this is TELL ME MORE from NPR News.

We're talking about the affirmative action case recently added to the Supreme Court's docket. My guests are Jim Chen. He is dean and professor of law at the Brandeis School of Law at the University of Louisville. He's a former clerk to Justice Clarence Thomas. And that's who was speaking just now. Also with us, Kevin Johnson, dean and professor of public interest law at the University of California Davis School of Law.

Dean Johnson, what about you? What's your assessment of this? The same question I asked Dean Chen, is it - I think the working assumption, particularly among, I think, people who support affirmative action is that the court has been looking for an opportunity to revisit this issue so that they can overturn affirmative action. Do you think that's a fair assessment?

JOHNSON: Well, it's always hard to guess what the court is thinking. But in this instance, we do know that it is somewhat of an odd case for the court to take. You know, the plaintiff in the case, Abigail Fisher, is now a graduate. She graduated from LSU. And now, her claim basically that she was denied access to the University of Texas is more or less moot.

And, in fact, the University of Texas said that if all you want is your application fee back, we'll give you your fee back since you're no longer, you know, there's no chance that you could be admitted to the University of Texas undergraduate college.

So, it seems that there does seem to be a bit of reaching here. Some people are very surprised that this case was taken up by the court. I think that Dean Chen is exactly right that we can probably count four justices in favor of overruling Grutter. I do think it's very unclear where Justice Kennedy comes out in the end.

He did dissent in the Grutter decision. But at the same time, in the most recent decision considering race in school district admissions policy, he did leave some room in his concurrence for considering race by government at some level. So, it's not clear to me the ultimate outcome of the case, but it does set the stage for the possible revisiting of Grutter and a possible overruling of Grutter.

MARTIN: Just want to clarify one thing, I think that Abigail Fisher maybe a graduating senior at LSU. I'm not quite sure that she's graduated yet, but I think she's a graduating senior this year. But that being said, if we could just in the couple of minutes that we have left, the University of Texas policy includes consideration of race as part of a holistic evaluation of applicants who didn't qualify for admission through either superior academic performance or a plan that grants admission to the top 10 percent of graduates from each Texas high school. It's kind of a unique policy.

But I did want to ask each of you, just on the broader issue, if you were arguing this case, what would be your argument on each side? And if you don't mind, Dean Chen, I'll start with you. There are all kinds of arguments that people make. They feel that it demeans and diminishes achievement and all kinds of things. And I know that those aren't your - that's not your argument.

CHEN: Let's start with one thing here.

MARTIN: Sure.

CHEN: I think what Dean Johnson and I, and virtually everyone in higher education, especially in legal education, believes is this, we can't have a legitimate society - we can't have a legitimate legal profession unless it is perceived to be and is representative of all people in our society.

So, let me focus on the Texas plan here. Four-fifths of the University of Texas' entering class would be admitted on the strength of high school performance. It's an automatic if you're in the top 10 percent, you're in. Now, that's in the language of constitutional law. That's something that's facially neutral. There's no reference to race on the surface of that law.

But it takes just one glance at the real facts to know this is probably intended to be a racially conscious approach to admissions, because we know just how deeply segregated Texas schools are by race. Not necessarily by law, maybe it's the legacy of many past actions. But we know that if we pick 10 percent from every high school and say you are automatically admitted that in itself will guarantee some measure of representation in the entering class at UT.

Then it's the second level of this - and this is the layer at which race is taken into account for filling in the last 20 percent of the seats in the class. So the argument from the point of view of the university has got to be we're engaging in a facially neutral approach to guarantee geographic distribution of access to University of Texas across the entire state.

CHEN: Now, we have one plaintiff who was disappointed at not being admitted to the University of Texas and her argument is, straightforwardly, race is a suspect classification. We waged a civil war over slavery. We were supposed to put race behind us, and one of the standard doctrines in contemporary constitutional law is that government resort to classifying people on the basis of race or ethnicity is instantly suspect.

What this plaintiff is saying is with respect to my admission to this university, no, it's still suspect, I think it's wrong. That's going to be her argument.

MARTIN: Dean Johnson, we don't mean to leave you out. Just want to get a final thought from you about what direction you think this case is taking and what you think it needs.

JOHNSON: Well, I think that the case is a complicated one, that affirmative action is a very difficult societal issue that we're still trying to work out, like we're trying to work out many issues of race in American society.

I do think it's important to keep in mind that I think that the University of Texas was acting in good faith, trying to follow the Supreme Court's decision in Grutter. And it's also important to note that the 10 Percent Rule, as it's called in Texas, allows the top 10 percent from every high school in the state to be eligible for admission to the University of Texas.

That that means that Abigail Fisher wasn't in the top 10 percent of her high school and didn't get admitted through that process, so the part that she's complaining about is the 20 percent of the admissions process where many factors are considered, whether it's athletics, musical ability - race is one factor. And it was a multifactor, not race as the dispositive factor here.

And I think the Supreme Court, in important respects, had it right in the Grutter decision in saying at some level we should defer to the university in considering race in its admissions process and considering things like the importance of having a critical mass of minorities in the student body and in the classroom. It benefits the education of all students to have a diverse student body.

MARTIN: That was Kevin Johnson. He's dean and professor of public interest law at the University of California, Davis School of Law. He joined us from the campus of the University of California Davis.

Jim Chen is dean and professor of law at the Brandeis School of Law at the University of Louisville. He's also a former clerk for U.S. Supreme Court Justice Clarence Thomas, and he joined us from member station WFPL in Louisville.

Dean Chen, Dean Johnson, thank you both so much for speaking with us.

JOHNSON: It was a pleasure.

CHEN: Thank you.

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