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.