Mixed Race Studies

Reaping the Whirlwind

The New York Times
Opinionator: Exculive Online Commentary From The Times
2012-10-17

Linda Greenhouse, Senior Research Scholar in Law, Knight Distinguished Journalist-in-Residence, and Joseph Goldstein Lecturer in Law
Yale University

On reading the transcript and listening to the audio of last week’s Supreme Court argument in the University of Texas affirmative action case, my primary reaction was one of embarrassment — for the court and also for Texas.

First the court. Of the four justices most intent on curbing or totally eradicating affirmative action — Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Samuel A. Alito Jr. and Clarence Thomas — the three who spoke (minus Justice Thomas, of course) failed to engage with the deep issues raised by Fisher v. University of Texas. Instead, they toyed with the case.

Chief Justice Roberts, after posing only one question to the lawyer representing Abigail Fisher, the rejected white applicant who filed a lawsuit claiming she was unconstitutionally discriminated against, flung 27 questions at the university’s lawyer, Gregory G. Garre, many seemingly designed to make the university’s commitment to assembling a diverse student body look silly. “Should someone who is one-quarter Hispanic check the Hispanic box or some different box?” the chief justice wanted to know. “What about one-eighth?” he persisted. “Would it violate the honor code for someone who is one-eighth Hispanic and says ‘I identify as Hispanic’ to check the Hispanic box?”

Justice Scalia piled on: “Did they require everybody to check a box or they have somebody figure out, oh, this person looks one thirty-second Hispanic and that’s enough?”

On it went, and it was impossible to avoid the conclusion that ridicule rather than a search for understanding was the name of the game. “How many people are there in the affirmative action department of the University of Texas?” Justice Scalia asked Mr. Garre. “Do you have any idea? There must be a lot of people to, you know, to monitor all these classes and do all of this assessment of race throughout the thing.” Justice Scalia mused that if the court invalidated the program, “there would be a large number of people out of a job,” a prospect that seemed to tickle his fancy.

It doesn’t take a genius to point out that it’s inherently problematic for the government to count people by race (“It is a sordid business, this divvying us up by race,” as Chief Justice Roberts famously expressed the thought during his first term on the court, dissenting from a 2006 Voting Rights Act decision that found that Texas had improperly diluted Latino voting strength). That’s why the Supreme Court has insisted that any affirmative action plan must meet the test of “strict scrutiny” — that is, that the plan must be “narrowly tailored” to serve a “compelling interest.”

But the fact is, as the justices obviously know, that the court has concluded that affirmative action in higher education admissions can clear that high bar — as it did nine years ago in Grutter v. Bollinger, the University of Michigan Law School decision. In other words, there was a context in which the Regents of the University of Texas, following upon the Michigan decision, chose to act, a history they sought to acknowledge, and a better future they hoped to achieve for their diverse state by supplementing the unsatisfactory and mechanical “top 10 percent” admissions plan with one that considers each applicant as an individual — with race as “only one modest factor among many others,” according to the university’s brief. It was this context that was almost entirely missing from the justices’ questions to the university’s lawyer. The questions were not so much hostile as trivializing…

Read the entire opinion piece here.