<p>The very first question, during oral arguments(from Justice Ginsburg), was about whether Fisher had standing. </p>
<p>According to the university, she wouldn’t have been admitted to the university’s freshman class under any circumstances, regardless of her race. If she would have been rejected anyway, she wasn’t injured by the university’s use of race in its admissions program, and she can’t bring the lawsuit. </p>
<p>The countered argument was that Fisher had indeed been injured, because she had been deprived of her constitutional right to have her application for admission treated the same way as everyone else’s.</p>
<p>So there is a chance SCOTUS will use standing to punt, and wait for another case before making a ruling on race and admissions.</p>
<p>I predict SCOTUS will make a ruling, and no one will be happy (though everyone will claim victory!), as it will be another vague ruling from the court. We’ll be having this discussion again in 5 to 7 years…</p>
<p>“No, Fisher is challenging racial, not socioeconomic preferences.”</p>
<p>I stand corrected … even if it is a “distinction without a difference” in the grand scheme of things. Though Fisher’s claim is that she was denied admission despite the fact that she had better academic qualifications than some minority students who were accepted, her argument is easily extended to socioeconomic preferences … or even students admitted under the 7% rule. </p>
<p>But (once again) we diverge from the OP’s question … how will the Court decide this case? Whatever the decision, it’s unlikely to be the last one regarding UTexas admissions policies. (Actually I hope UT admissions never reach “fair.” I happen to like college football!)</p>
<p>My guess is that the SC will uphold the decison, since race is permitted as a factor on a holistic basis as long as there are no quotas involved. The TX system, unlike the UMich Law admissions criteria, does not have an out and out quota for race. It just takes into account diversity, not just race, but diversity as a whole for selection of a class. The reason this case is being watched with such interest is that if UT’s admissions process is considered discriminatory and not permitted then a lot of schools are going to have to change the way they are doing admissions. I don’t think that is going to happen.</p>
<p>I may be pretty much with Gator, though I don’t know his/her full stand.
How I see it: one side claims (reminiscent of certain CC threads,) that there is one over-riding preference: race. The other says, no, it’s one of several/many considerations. The burden of proof is on the claimants. How, when most admissions processes are not fully disclosed? Certainly not with, as someone ahead mentioned, Fisher as torch bearer. A clearly high-performer/high-achiever kid who fell barely outside the 10% (whatever it was at that point,) would have been a better choice.</p>
<p>I believe the point in SCOTUS reviewing this case is, as seen in the argument transcript, the precedent(s) set by Grutter. A chance to clarify Grutter and tackle some of the questions that decision did not. All the justices seemed satisfied to follow Grutter’s intent and parameters, as an existing precedent, not challenge it. The “potential impact” of their review is the rollout to other (or all) states trying to meet their diversity goals. So, to me, it makes sense SCOTUS reviews- it’s not about one Abby Fisher, it’s about implementation in a wider sense. And, when you see it that way, take away any notion of Abby’s disappointment, I have trouble believing the court will strike down the diversity goals.</p>
<p>What they may do- and I don’t see this as a world-ending harm- is tell the UT system to come up with a better process.</p>
<p>Fisher seems to rest on the idea that, even with her “package,” she was not given a fair shot, from the get-go. I get that. Though it’s not said (I think) in the arguments, it’s a point many of us on CC are aware of- do you even try for admissions when you are borderline, with no hooks, nothing really to make you otherwise stand out? </p>
<p>But the mechanics of this case are what they are- not what any other individuals think they should be.</p>
<p>But was there a de facto quota? UT said it needed to use the holistic process to admit more URMs to achieve a critical mass. But they could not [or would not] articulate what number comprises a “critical mass”.</p>
<p>From the oral arguments:</p>
<p>CHIEF JUSTICE ROBERTS:
*What is that number? What is the critical mass of African Americans and Hispanics at the university that you are working toward? *</p>
<p>MR. GARRE: Your Honor, we don’t have one. And – and this Court in Grutter –</p>
<p>CHIEF JUSTICE ROBERTS: So how are we supposed to tell whether this plan is narrowly tailored to that goal?</p>
<p>I thought UT’s lawyer, GREGORY G. GARRE, performed abysmally in the oral arguments.</p>
<p>Actually, one thing which is likely to be brought up is that some of Texas’ school districts were among the last to desegregate in the late '60s and racial discrimination among educational admins continued in many areas…including UT into the 1970’s. </p>
<p>If this is considered…it not only means the White favoritism was much more recent than 50 years ago, it also means there was a good public policy reason for AA policies for UT to undo the cumulative effects of such past discriminatory practices. </p>
<p>Moreover, considering Fisher’s stats, I still can’t believe she has the chutzpah to come forth. As I said before…those stats adjusted to pre-1995 standards would have kept her out of my state’s then top flagship back in the early-mid-'90s*…and SUNY Binghamton ain’t UT-Austin. </p>
<ul>
<li>Her HS GPA barely meets the absolute minimum cutoff and SATs adjusted to pre-1995 were well below the then prevailing cutoff.</li>
</ul>
<p>“I thought UT’s lawyer, GREGORY G. GARRE, performed abysmally in the oral arguments.”</p>
<p>I agree. Furthermore, I think that abysmal performance essentially guarantees that Fisher won’t be the last word on the use of preferences in college admissions.</p>
<p>I know “preference” is a dirty word … one barely tolerated by talented CCers. I imagine there isn’t a single one of us who hasn’t been disadvantaged by someone else’s preference at one time or another. But surely there’s a reasonable middle ground between the all-white college classes of the 1950s, and an absolutely neutral system of college admission (e.g., a lottery of all HS graduates, with tuition fully paid by the state).</p>
<p>The suggestion that the decision in Fisher will somehow be based on a good faith effort to apply the standards established by the majority opinion in Grutter reflects a fundamental misunderstanding of the Court’s dynamic. O’Connor, who provided the critical fifth vote in Grutter has been replaced Samuel Alito, who has no tolerance for the consideration of race in the admissions process. The only chance for the University of Texas to prevail is to persuade Kennedy (who has been slightly, but only slightly, less unyielding on the constitutionality of “benign” considerations of race) to join the liberals in accepting the use of race in this context.</p>
<p>If I were a betting man, I would bet on Kennedy voting with Roberts et. al. in this case. But he is so mercurial (read: dumb) that I would have no confidence in that prediction.</p>
<p>I think calling Kennedy dumb is not to understand the court.</p>
<p>He is now in the SDO position. He moves further left and will stay in the center, I would guess. Justices really do change while they are on the court, and somebody always ends up in this position, historically. They really, and by they I mean mostly all justices, historically, have a pretty strong preference for balance, over time.</p>
<p>We may be seeing something new, nowadays, with the appointments being soooo politically freighted, but so far, what we have seen in the supreme court is a history of one or more justices moving to the center over their time on the bench.</p>
<p>I think it will be 4-4, no decision.</p>
<p>We have not reached critical mass with the race issue, and there are reasons, including the preferences of those who attend these schools, for racially diverse colleges.</p>
<p>Following cobrat, yes, fairness will be considered in many contexts. What Garre tried to swing the talk to was the present inability to define critical mass. I thought he was trying to say, it is not a quota or even a pre-conceived notion. We’ll know it when we see it. (Yeah, yikes.) But, he can’t give a number, per Grutter. </p>
<p>Texaspg makes what I think is a very relevant point. If the goal is increased opportunity/diversity/empowerment for URMs, and there is a problem in getting admitted minorities to attend UT, then the flaw extends beyond admission practices, themselves. There could be said to be a de facto discriminatory issue if, eg, the finaid isn’t there. Or, while the proportions of minorities are growing, to a point where they do not feel “isolated” or like 'spokespersons."</p>
<p>EMM, once Grutter was established, my understanding is that, as a precedent, it is a guiding principal, whether or not Alito likes it.</p>
<p>Opinions differ. I consider Abigail Fisher a civil rights hero, fighting against a system where whites and Asians are treated as second class citizens.</p>
<p>Oh, you’ll have to back up that claim that whites and Asians are treated as second class citizens. I think, over time, many feel their own takes are reasonable and justified. That don’t make it so. And this Fisher case can be viewed simply for what it is, as it has been presented orally and in written supporting documents. In the context of the law, as it is, and what the common - and legal - perception of “greater good” is.</p>
<p>This case is dead. If the Court wished to set precedent, which is what it does, then it would have done it by now. BTW the litigation was nothing but a bunch of lawyers (Fishers) making a lot of money, fundraising from paranoid conservatives. Also there is no perfect way to select students. 168 minority students had better stats than Fisher and they were rejected. There is no system of selection that will not discriminate.</p>
<p>If my children have a lower chance of admission to a state university because they check one racial box instead of another, I consider that they are being treated like second class citizens in the admissions process. Lots of people feel this way.</p>
<p>In theory, the justices have some formal obligation to respect precedent (although, even in theory, they are supposed to have more leeway in constitutional cases). In reality, however, precedent has nothing to do with the way that the justices vote in cases like Fisher (although the opinions will be dressed up to make references to the reasoning in previous cases).</p>
<p>I am in fact very familiar with Kennedy’s performance and opinions in a variety of different contexts, and I think that it is absolutely clear that, depending on how one stands on Thomas, he is CLEARLY the dumbest or second dumbest justice on the Court.</p>
<p>You also simply cannot prove that our children’s chances are lower because they checked one box versus another. You may read a lot of certainty about that on CC or in common media. But, you do not know. IME, there is no paper trail, no public record in which adcoms make certain their policy for utter preference for some races over others.</p>
<p>Btw, anyone have an idea why this was not brought as a class action suit?</p>