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Three Takeaways From The Fisher v. University of Texas Arguments

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CREDIT: Campus Progress/Naima Ramos-Chapman

I was lucky enough to sit in on arguments in the Fisher v. University of Texas case before the Supreme Court recently, a case that could eliminate a public institution’s right to consider race as a factor in the college admissions process.

About an hour before oral arguments began, I arrived at the Supreme Court and, as I waited to get in line, scanned the crowd. A crowd already lined the steps outside  the historic Supreme Court building; some held signs supporting the University of Texas and its equal opportunity program. Reporters and camera crews darted back and forth searching for people whom they could interview about their opinions on the case.

Several speakers from various youth advocacy organizations—including Campus Progress' Advocacy Manager Eduardo Garcia—addressed hundreds gathered outside the Court about the importance of maintaining diversity on college campuses. Speakers argued that doing so means ensuring education is accessible to all young people, regardless of socioeconomic disadvantages. If America is truly committed to values of providing equal opportunity, the speakers argued, the college campus is the perfect place to level the playing field for the underprivileged.

In the courtroom, Bert Rein, who represented Abigail Fisher, the white female college applicant filing the suit, was interrupted by justices just 20 seconds into his opening statement. Then, another justice chimed in to ask a question; this pattern of question-answer banter between the justices and the lawyers went on for the entire 30 minutes of each side's arguments.

Based on my observations, these were the key takeaways from the arguments:

1. Chief Justice John Roberts was very aggressive with Gregory Garre, counsel for the University of Texas. At one point, Roberts asked Garre at what point the university would have a "critical mass" of minority students necessary to achieve diversity. When Garre was unable to explain a specific point at which diversity is achieved, Roberts asked "how we [are] supposed to tell whether this plan is narrowly tailored to that goal?"

The University of Texas defended its use of race-conscious policies as promoting "diversity" in the abstract but did not provide specific metrics. Had the University of Texas' counsel used specific numbers to measure diversity, it would be essentially arguing that the university used a quota system, which was explicitly struck down in the Court's 1977 decision Regents of the University of California v. Bakke.

2. Justice Antonin Scalia also pressed Garre on the concept of measuring diversity, positing that the University of Texas could perhaps have people visit different classrooms on campus and determine from their judgment whether or not they are "diverse" enough. Scalia also wondered aloud how many people the university has employed to count the number of minority students, implying the existence of an "affirmative action department."

Roberts also asked Garre about the reliability of surveys distributed by the university to measure diversity.

3. To answer the underlying question at the crux of the case—whether public higher-ed institutions should be permitted to consider race when cultivating their student body—Garre said: "You would look to whether or not the university reached an environment in which members of underrepresented minorities, African Americans and Hispanics, do not feel like spokespersons for their race."

As Garre pointed out, considering race as a factor—in addition to income, cultural background, and varied lived experiences—in the admissions processes is both a tool for making a college more diverse and for acknowledging racial injustices that have created chasms of inequality that still impact people of color.

Garre's argument wasn't that race should always matter—rather, that it does have implications in all facets of our society.

African Americans with the same qualifications as white applicants are still less likely to be selected for jobs or even have their resume considered. Middle-class and upper-middle-class minorities still face racial profiling across the country, and studies demonstrate that predatory lending has disproportionately affected minority communities, even when controlling for socioeconomic status.

Therefore, he argued, "race-neutral" policies would make sense in a race-neutral society and, although we've made progress, we're frankly just not there yet.

Sydney Hofferth is a Communications Intern for Campus Progress. You can follow her on twitter at @squidhoff10.

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