Summary: Abigail Fisher and Rachel Michalewicz, two Caucasian women, were denied admission to the University of Texas and subsequently filed suit alleging that the university’s selection process discriminated against them on the basis of race. Lower courts upheld its constitutionality in accordance with the Grutter v. Bollinger (2003) ruling. Michalewicz withdrew her suit, but Fisher filed a petition for a writ of certiorari in 2011. According to the plaintiff’s legal representation, the university’s “reintroduction of racial preferences is blatant racial balancing.” Fisher’s petition was granted in February. What follows is a background of the ongoing case. Fisher v. University of Texas The Supreme Court listened to oral arguments Wednesday. The Wall Street Journal reported the hearing in real time. I’ll excerpt a few of the most important details.11:06 am | Much of the attention today will fall on Justice Anthony Kennedy, whom both sides see as the deciding vote. 11:28 am | A 4-4 split is possible. If the court does split, the lower-court ruling upholding the UT affirmative-action program will stand. 12:12 pm | Justice Kennedy, however, also appeared interested in the concerns raised by Chief Justice Roberts and Justice Alito: How does the university know when it’s reached a critical mass of minority students? Remember, the court has ruled that quotas or targets aren't allowed. 12:26 pm | Justice Sotomayor suggests UT’s policy was motivated at least in part by a study showing that minority students felt isolated in the classroom. 12:42 pm | Does a 1/4 Hispanic check the Hispanic box or the ‘multiracial’ box on the application form?, Chief Justice Roberts asked. When [UT’s legal representation] said it was the applicant’s choice, the chief was ready with a follow-up: What about 1/8? Sidebar (yes, a brilliantly intended pun) — the succeeding 20- to 30-minute discussion on the ease of ‘affirmative action fraud’ is worth reading verbatim on the Journal’s website.1:16 pm | [Solicitor General Donald] Verrilli filed a brief on behalf of several government departments, including the Defense, Education, Commerce and Labor departments, asserting a “compelling” government interest in promoting racial and ethnic diversity. 1:26 pm | Justice Alito asks: Do you believe that black and Hispanic students from privileged backgrounds deserve a preference? Mr. Verrilli says that’s not how he understands the UT program. And, thus, oral arguments end here. The Journal predicts that a ruling will take at least a few months, but we can always try to forecast what will happen. Select Quotes from Supreme Court Justices Antonin Scalia (1995):To pursue the concept of racial entitlement — even for the most admirable and benign of purposes — is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. Clarence Thomas (2008):[Affirmative action] has become this mantra and there almost has become this secular religiosity about it. I think it almost trumps thinking. … We’re going to run into problems if we say the Constitution says we can consider race sometimes. Ruth Bader Ginsburg (2000):…discrepancies in racial well-being in the United States noted by the United Nations report demand affirmative government attention. … We are the losers if we neglect what others can tell us about endeavors to eradicate bias against women, minorities, and other disadvantaged groups. Stephen Bryer (2004), on Grutter v. Bollinger’s upholding of affirmative action:I think it’s the most important case that I’ve participated in since I was appointed to the Supreme Court. … And if we cannot bring a degree of diversity into institutions across the United States, we will not have a country that will function as a democracy. John G. Roberts (2007):For schools that never segregated on the basis of race … or that have removed the vestiges of past segregation … the way “to achieve a system of determining admission to the pub
