The Michigan Daily - michigandaily.com
Thursday, October 11, 2012 - 5A
The Michigan Daily - michigandailycomThursday, October 11, 2012 - 5A
Statements made by Ginsburg, Sotomayor and Breyer argued that
the Grutter precedent, along with affirmative action, could be com-
promised if the court rules in favor of Fisher. Justice Sotomayor said,
"You don't want to overrule Grutter, you just want to gut it."Gins-
burg, who was in the majority of the 2003 Grutter case, said the Uni-
versity of Texas' policies fall within the outlines set by the Grutter
precedent.
Ginsburg
Sotomayor Breyer
'----- - _. _- W INGVOT
,r
MEMO=
Kennedy showed reserve but questioned both sides during oral
arguments without showing favoritism. He asked Fisher's
lawyer, Rein, about the usage of the program questioning his
statement that the plan admits few minorities, "I said, well, if
it's so few, then what's the problem?" After Garre, the Univer-
sity of Texas' lawyer, stated the university's purpose for the
program, Kennedy commented, "So what you're saying is that
what counts is race above all."
Kennedy
Kagan recused herself
because she was
involved with the case
while serving as U.S.
Solicitor General prior
to her 2010 nomination.
Kagan
Ito! FIT"
MASS,
The conservative justices were critical about the
University of Texas' policy and its definition of
critical mass of underrepresented minority stu-
dents - specifically how the critical mass is
calculated. Chief Justice Roberts asked Garre, "I
know what you say, but when will we know that
you've reached a critical mass?"
TEXT: PAIGE PEARCY, DESIGN: AMY MACKENS and ALICIA KOVALCHECK
Scalia
Roberts
JUSTICES
From Page 1A
brought forth by Abigail Fisher,
a white Texan who was denied
admission to the University of
Texas, which uses race-based
admissions practices.
During questioning, Justice
Sonia Sotomayor laid out the cen-
tral question facing the court as
it decides whether race should be
considered in university admis-
sions.
"When do we stop deferring
to the university's judgment that
race is still necessary?" Sotomayor
said. "That's the bottom line of
this case."
In 2003, the Supreme Court
attempted to create a framework
that would allow higher educa-
tion institutions to use affirma-
tive action within certain bounds.
In Gratz v. Bollinger, the justices
determined that an automatic
awarding of points or preferential
admissions based solely on race
was unconstitutional.
However, in the companion
case, Grutter v. Bollinger, Justice
Sandra Day O'Connor wrote in her
majority opinion that race could
be considered on a holistic basis
with regard to how much an indi-
vidual could contribute to campus
diversity.
The University of Texas auto-
matically admits the top 10 per-
cent of graduates from each high
school in Texas. When admitting
students outside this top 10 per-
cent, the university uses race as
one of its consideration factors.
Attorneys from the University
of Texas, which is defending its
admissions practices, faced criti-
PROP 2
From Page 1A
basis of race that passed by pop-
ular vote in 2006, has been under
consideration in the federal
courts since last year. The case is
currently under deliberation by
the 15 judges of the U.S. 6th Cir-
cuit Court of Appeals.
If the nation's highest court
opts to overrule the precedents
at hand in Wednesday's case
- namely, Grutter v. Bollinger
- the verdict could render Pro-
posal 2 irrelevant, since the
consideration of race in college
admissions would be unconsti-
tutional even without the state-
wide ban.
However, should the Supreme
Court uphold, at least in some
form, its verdict in Grutter v.
cal questions from Justice Anto-
nin Scalia, Justice Samuel Alito
and Chief Justice John Roberts -
three of the court's conservative-
leaning members.
Bert Rein, Fisher's attorney,
said he didn't want the court to
overturn Grutter v. Bollinger, but
rather hopes to force the court to
better define how universities can
use race as a factor in admissions.
He argued that Texas' use of
affirmative action didn't meet
Grutter v. Bollinger's require-
ments because its 10 percent pol-
icy provided ample amounts of
diversity.
"You don't want to overrule
Grutter," Sotomayor said. "You
just want to gut it."
When Rein was asked by
Ginsberg about how the over-
all admissions system might be
considered and if the 10 percent
policy and admissions process for
the remainder be separated, Rein
pushed back.
"Well, I think that there would
be flaws under Grutter, even if you
assumed away something that
can't be assumed away, because
it is amatter of Texas law, that is,
there is a top 10 percent program,"
Rein said.
Ginsberg then responded to
Rein's obstinacy by saying the 10
percent policy itself is less radi-
cal than the University of Michi-
gan's Law School admissions plan
upheld by the court in 2003.'
"Well, then the question is can
you have both?" Ginsberg said.
"But it seems to me that this pro-
gram is certainly no more aggres-
sive than the one in Grutter. It's
more, in fact, more modest."
During Rein's testimony 'to
the court, the attorney pointedly
Bollinger - an outcome Univer-
sity professors and most experts
expect - that ruling could
alter the course of the Court of
Appeals' determination of Pro-
posal 2's constitutionality.
If Grutter is upheld, the Court
of Appeals might look more
favorably on the role of affirma-
tive action in college admissions,
according to Law Prof. Mark
Rosenbaum, who has argued in
favor of the Proposal 2 case and
affirmative action.
"If Grutter is not overruled,
it'll be a shot in the arm for our
side," Rosenbaum said.
In July 2011, opponents of
Proposal 2 - most notably By
Any Means Necessary, a pro-
affirmative action group that
brought the case to court -
earned a victory when a panel of
judges on the Court of Appeals
criticized the University of Texas'
handling of admissions targets for
minorities and the lack of trans-
parency on the issue. Rein placed
much of the blame on the lack of
definition provided in the Grutter
decision.
"They simply ignored it," Rein
said. "They just used words and
they said we've got to do more. So
they never answered the predi-
cate question which Grutter asks:
Absent the use of race, can we gen-
erate a critical mass?"
Justice Anthony Kennedy, con-
sidered the potential swingvote in
the case, didn't appear to tip his
hand during the debate, question-
ing both sides.
Kennedy challenged one of the
University of Texas' attorneys
after he argued that the school
wanted to consider race in admis-
sions in order to attract students
outside the top 10 percent of each
high school's graduating class.
"What you're saying is what
counts is race above all," Kennedy
said.
Garre, speaking after Rein's
opening argument, attempted to
reconcile the University of Texas'
10 percent policy and admis-
sion process for the remainder
of the seats with the Grutter rul-
ing. Much of the discussion was
focused on the definition of a
"critical mass."
Under Grutter, a goal of affir-
mative action policies is to ensure
minorities on college campuses do
not feel isolated and voiceless. The
critical mass refers to an unde-
fined proportion of students pro-
viding each minority group proper
integration and voice within the
larger campus community.
"Grutter said there has to be
ruled the amendment uncon-
stitutional by a 2-1 vote. At the
time, BAMN and its allies held a
press conference on the steps of
the Michigan Union to celebrate
the victory.
However, three weeks later,
Michigan Attorney General Bill
Schuette announced an appeal
of the decision for the court to
review the case en banc - by the
court's 15 total judges. BAMN
and Schuette are awaiting the
verdict from the en bane hearing.
George Washington, a lawyer
who argued the case for BAMN
along with Rosenbaum, said
he expects a verdict from the
Court of Appeals in the next few
months. While he noted that he
is confident in a victory for affir-
mative action, he cautioned that
the verdict may still not be the
end of the fight over Proposal 2.
a logical end point to your use of
race." Roberts said. "What is the
logical end point? When will I
know that you've reached a criti-
cal mass?
When Garre failed to give Rob-
erts an objective measurement
of the critical mass a frustrated
Roberts demanded to know how
he was supposed to arrive at his
decision.
"How am I supposed to decide
whether you have an environment
within particular minorities who
don't feel isolated?" Roberts said.
"So, I see, when you tell me, 'that's
good enough."'
The final testimony from Solic-
tor General Donald Verrilli Jr., on
behalf of the U.S. government and
in favor of the University of Texas,
was also scrutinized by the con-
servative jurists.
"The core of our interest is in
ensuring that the nation's univer-
sities produce graduates who are
going to be effective citizens and
effective leaders in an increasingly
diverse society, and effective com-
petitors in diverse global markets,"
Verrilli said.
Scalia began questioning Ver-
rilli by creating a hypothetical
situation with two exactly equal
candidates of different races and
asking Verrilli whom he thought
would be admitted. Verrilli vacil-
lated on his answer, saying that
race would not be the deciding fac-
tor and that it operated more sub-
tly than an automatic preference
given to the minority student.
In a particularly telling
moment, Kennedy seemed to dis-
count Verrilli's argument for the
University of Texas' plan, though
this instance did not as clearly
define his opinion on the issue as
The Supreme Court may also
decide to hear the Proposal 2
case, he said.
If that happens, Washington
said precedent offered in Fish-
er v. University of Texas could
guide the court's judgment in a
possible Proposal 2 case, add-
ing the question would not be
whether affirmative action is
admissible, but whether a ban
on affirmative action by state
amendment is constitutional.
While the consensus seems to
be that the Grutter v. Bollinger
verdict will stand in some capac-
ity, Washington said that is "not
inevitable."
"A lot will be determined,"
Washington said, referringto the
climate after the Supreme Court
reaches its decision on Fisher v.
Texas, which will be announced
later this year.
did Roberts's, Scalia's and Alito's
statements.
"I thought that the whole point
is that sometimes race has to be a
tie-breaker and you are sayingthat
it isn't," Kennedy said. "Well, then,
we should just go away. Then we
should just say you can't use race,
don't worry about it."
In a brief moment of laughter
in the courtroom, Breyer mocked
Scalia's question with his own
largely rhetorical question for Ver-
rilli, implying Scalia's scenario was
ridiculous.
However, Breyer's answer stat-
ed that in his belief, the minority
candidate would then be preferred
on the basis of race, if all other
factors - like test scores, socio-
economic status and community
service participation - were the
same.
"If you have a situation where
those (and) all those things were
absolutely identical, than the per-
son would be admitted on the
bounds of race," Breyer said.
The court also discussed
whether or not Fisher had legiti-
mate grounds for suing the Uni-
versity of Texas for damages. Rein
argued that the failure of the col-
lege to afford her equal protection
under the law was in itself stand-
ing for the case. The court will
consider this matter during delib-
erations, but the decision will not
likely have a significant bearing on
the outcome.
The case is widely expected
to be a victory for Fisher in some
capacity. However, the way in
which she prevails will determine
the case's legacy in future consid-
erations.
Should the court rule that the
University of Texas exceeds its
mandate under Grutter v. Bol-
linger, and provides abetter defini-
tion for how diversity goals should
be achieved, affirmative action
will likely endure.
Still, it's possible that the con-
servative justices, who now domi-
nate the court, could overturn the
precedent set by Grutter v. Bol-
linger and completely eliminate
the consideration of race in college
admissions.
Further changing the composi-
tion of the court was Justice Elena
Kagan's decision to recuse herself
from the case, due to a conflict of
interest arising from working on
related issues during her time as
U.S. Solicitor General.
In the past, Justice Kagan has
typically voted with the liberal
side of the court, which makes the
University of Texas' case more dif-
ficult to win.
Should the court split 4-4, the
lower circuit court's decision that
the actions of the University of
Texas are legal under Grutter v.
Bollinger would stand, but would
not have any precedential value.