Fisher in Wonderland

Today’s oral argument before the Supreme Court in Fisher v. University of Texas at Austin had an Alice in Wonderland quality to it. But I suppose that became inevitable when the Court granted universities permission to discriminate in admissions on the basis of race in the name of “diversity.”

Much of the time of Fisher’s lawyer, who is challenging the way the University used of racial preferences to exclude his client, was spent answering questions from liberal Justices who wanted to know what alternative race-based methods (Justice Breyer actually spelled it out “r-a-c-e”) he thinks UT could have used in admissions. It’s odd that Fisher’s lawyer was expected to describe other means by which the University potentially could have discriminated against his client. And even under the Supreme Court’s unfortunate jurisprudence in this area, it’s not the plaintiff’s burden to point to and demonstrate the efficacy (in terms of promoting diversity) of less discriminatory alternatives; rather the burden is on the discriminator to show the absence of effective alternatives.

Then, counsel for the University spoke. Defending the use of race in the selection of applicants not admitted under the rule whereby the University admits the top 10 percent of the graduating class of every Texas high school, he stated:

[T]here is a significant portion of the admissions pool — all out of state students, all students from Texas high schools that don’t rank [in the top 10 percent of their class at] some of the best high schools in the state, and all students just below the top 10 percent — who are nevertheless great students who aren’t eligible for admission under the top 10 percent [rule] at all.

And the Fifth Circuit found that without the consideration of race in the mix for those students, admissions would approach an all white enterprise.

But the purpose of admitting students from this pool is to admit “great students” excluded by the operation of the 10 percent rule. If blacks are well-represented at the University thanks to the 10 percent rule, but don’t make up a large percentage of the “great students” admitted through an alternative mechanism because they aren’t “great” enough, this hardly seems like a justification for racial discrimination among those subject to this mechanism.

But the real question isn’t the merit of this or that argument made in Fisher; the real question is how Justice Kennedy sees the case. Specifically, does he believe that the Fifth Circuit Court of Appeals cured the deficiency — excessive deference to the University; insufficient demand for actual evidence — that caused the Supreme Court to revive Fisher’s case the last time it heard this matter?

It’s hard to say. However, Justice Kennedy’s questions suggested that he still isn’t happy with the Fifth Circuit.

I say this because one of Kennedy’s lines of questioning focused on whether the Fifth Circuit should have sent the case back to the district court so that more fact finding could occur. To me, this seems to indicate (1) that Kennedy still doesn’t think there is enough in the record to survive the strict scrutiny that must be applied to the question of whether the University’s use of race is narrowly tailored to meet its purpose and (2) that Kennedy might like to send the case back to the lower courts a second time.

Kennedy seemed to sense an opening for such a remand in the fact that, though the University had sought to have the case sent back to the district court, Fisher opposed remand and the Fifth Circuit refused to grant it.

However, counsel had trouble explaining what new evidence the University would have presented on remand. Indeed, Justice Kennedy told him flat out that what he was hearing indicated that if there had been a remand, the evidence wouldn’t be much different than it is now.

A remand for additional evidence wouldn’t make much sense, in my view. As counsel for Fisher said, “You have to come to the [Supreme] Court with a record; you can’t make it up later.”

(There is, however, one relevant development that isn’t in the record because the University kept it secret until recently. As Hans von Spakovsky and Elizabeth Slattery explain, it turns out that university officials regularly overrode the system for admitting candidates in the pool not eligible for admission under the 10 percent rule — the pool at issue in this case. And an investigation by a consulting firm found indications that race was used in the override process to favor minority applicants — i.e, to discriminate in their favor even more than UT admitted to doing.)

In sum, the outcome of Fisher seems up-in-the-air after today. Adam Liptak of the New York Times says, “a majority of the justices appeared unpersuaded that the plan was constitutional.” I think that’s right. But if so, what is a majority prepared to do?