Our very involved president.

Last week, the Supreme Court began hearing the Fisher vs. University of Texas case.  This case, concerning affirmative action at the University of Texas, threatens to overturn the 2003 Grutter vs. Bollinger, that upheld the use of affirmative action in admissions at the University of Michigan Law School.

Abigail Fisher, a white woman, brought her arguments to the court after being denied admission to the University of Texas in 2008.  She believes she was rejected because of her race; she thinks her place in the student body was taken to create more diversity in the school.

The University of Texas has a unique admissions process.  In 1997 they passed Texas House Bill 588.  This bill instituted the “Top 10% Rule,” wherein the top 10% of every public school in Texas is granted admission to University of Texas.  It came to being following Hopwood v. Texas, which showed that the university was not using affirmative action properly and could not use race in admissions.

However, a change came with Grutter vs. Bollinger.  In PrezBo’s Freedom of Speech and Press class, he has been candidly discussing the history of affirmative action cases.  “I’m an advocate,” PrezBo said last Wednesday.  He believes that it supports diversity, which allows students to learn more from each other with differing perspectives.  Just as a school wants students from every state and other countries, it wants people with different backgrounds.  As he wrote in an article last week in the LA Times, “abandonment of the Grutter precedent would undermine the quality of education we can offer to all our students.”  In class, Bollinger cited California Prop 209, which banned the use of race in the admissions process.  After it was instituted, he explained, diversity at California schools crashed.  He goes into details about this in the LA Times article.

He did not want this happening in Michigan.  In fact, he did not want it happening across the nation; Bollinger understood that the ruling in Grutter vs. Bollinger would affect institutions everywhere.  He ensured that, bringing together other schools.  He then pulled corporations to defend the use of race in hiring.  Gerald Ford wrote an op-ed in the New York Times about his college experience with diversity.  Bollinger also turned to military academies for their support.

Bollinger had two cases to fight: Grutter and Gratz vs. Bollinger.  Gratz was against the undergraduate school at Michigan.  In class, PrezBo explained that he was not aiming to win Gratz.  At the undergrad school, the admission process gave a certain amount of points to students of underrepresented minorities.  He knew that this would be deemed unconstitutional, and it was.

The Supreme Court has posited that Brown vs. Board of Education was about stopping segregation, not creating integration, and schools should follow that.  PrezBo went further to explain that affirmative action cannot be used to make up for centuries of mistreatment of minorities in America.  It is constitutional if used for educational purposes, to combine races and thus ideas.  But it is not constitutional if used to correct for injustice.  The Grutter case went how Bollinger wanted it to, and schools are allowed to use race in admissions decisions to further this integration of intellectual backgrounds and learning.  It was an odd Supreme Court decision, though, as Justice O’Connor, who wrote the majority decision, said this would only last for twenty-five years.

Now the decision in Grutter is being brought into question.  Justice O’Connor has since retired and was seated front row in the court last week.  PrezBo explained the decision will not be made until June, when the Supreme Court term ends and most big decisions are announced.  However, he is feeling “fairly hopeful” that his version of affirmative action will stand.

In the arguments made last week, Fisher was asked directly what they were asking for.  Fisher’s team said they are not seeking to overturn Grutter, but to prove that the UTexas system is flawed; they are challenging the 10% Rule, not affirmative action itself.  But the justices are not bound by the petitioner’s decision; they can still change the ruling from Grutter.

The major issue that was addressed last week was the idea of a “critical mass.”  This came from Grutter: universities could use race in admissions to ensure they had a “critical mass” of underrepresented minorities.  The question was exactly how universities define a “critical mass.”  It can’t be a quota to reach and is highly subjective.  Justice Kennedy dissented in 2003, objecting that “critical mass” sounded too much like filling a quota of minority students.  In Grutter, the definition was left to individual universities to decide.  Now, though, the Supreme Court is asking for specifics.

“The more justices ask for evidence of critical mass—these things are hard to judge quantitatively—the more difficult it will be for universities,” Bollinger said.  But, it is “possible to work on ‘critical mass’ without universities suffering.”  It would appear as if Columbia is already preparing for a change in the system.  The language of the CAFA charter lends itself to this, ready to make up for a constriction on affirmative action as it “offers guidance on how diversity…should be considered in evaluation of applicants for their potential to contribute to and benefit from the undergraduate experience at Columbia.”

Justice Kagan recused herself from this case as she had previous work on this case and in UT.  If the Supreme Court decision is tied, the decision will go back to the lower courts, where they already ruled in favor of the University of Texas.  PrezBo is not too worried about his case being overturned as the Supreme Court has to follow precedence, and the 2003 decision is clearly applicable.  This should affect Justice Kennedy, who most believe will have the deciding vote.

“Given that they are not asking to overturn Grutter, I’m optimistic at this stage,” Bollinger smiled last Wednesday in class, and moved on to the reading.

The title character of Grutter v. Bollinger via Wikimedia Commons