Your thoughts on the oral arguments and on the likely outcome? Do you predict a decision in favor of or against the petitioner Abigail Fisher? If SCOTUS rules in favor, then how encompassing the scope?
Note:
this is NOT a general affirmative action discussion. Please confine your comments to the particulars of this court case and its potential impact on college admissions policy.
I have only read news accounts and the one on SCOTUSblog. Is there a transcript yet? I think audio goes online end of the week.
From what I have read, Kennedy seems very frustrated with Fisher for not going back to District Court to allow more evidence in. My understanding is this was an option available to her and she declined saying they had agreed to summary judgment. That meant no new facts for the appellate court and now SCoTUS to hear. Sounds like they could remand it AGAIN. They might do that and let the Harvard and UNC cases which have fewer issues (clear standing, stronger applicants, etc.) make it to them instead. But then again, Kagan won’t have to recuse out of those cases, so maybe not.
In the end this comes down to Kennedy. We already know how everyone else lines up. I don’t think he is going to dismantle AA with this case. Too many problems. I think he will strike down UT’s current use of it, but he really thinks that was the lower court’s job and they did not look at it with strict scrutiny.
Sounds like Scalia went down the road of the overmatching of AA candidates that Thomas has discussed in previous briefs and the UT attorney alluded to “separate but inferior” in that line of questioning. But he wasn’t going to get Scalia’s vote anyway.
With regards to policy, the Texas law allowing UT’s exception to top 10 percent (they take top 7-8), specifically states if the use of race is found unconstitutional, UT reverts to top 10 percent which could be a real mess for UT for a year or so until they came up with something more race neutral unless they have something waiting.
Here are some of the courtroom comments captured in a live blog:
http://www.wsj.com/articles/BL-WB-59688
Read them both- thanks. I don’t think they will overturn AA and based on Breyer’s comment about “fatal in fact” it sounds like there was an agreement in Fisher I not to do that by a thousand cuts - (save Scalia and Thomas who openly said they would reverse AA in admissions). Sounds like remand is not an option because UT does not have data from the time period where it made the decision and all UT would enter into evidence is more arguments on Fisher’s lack of standing. I think they’lol strike down UT’s plan.
But it seems like the solicitor general laid out a way to document compelling need and critical mass without quotas. UT could (and probably has) done that legwork.
What would it require for this case to have an impact on how private schools outside of Texas would have to adjust their existing affirmative action policies? I mean it looks like either we get the case sent back down for more data or it a tie at 4-4 and the lower court decision stands, alternatively the court could rule 5-3 for fisher but limit its writ to just UT and its policies??? So for it to have broader impact it would have to go 5-3 AND have majority opinion written in sweeping language striking down affirmative action. This seems like a super remote possibility doesn’t it? I mean maybe Scalia and Roberts could feel this way but would Thomas go this far? Would Alito?
Thomas and Alito? of course they would go that far – no question.
The one and only question is, where does Justice Kennedy stand – he is the key deciding vote.
It also can’t help but be influenced by the current heightened racial sensitivity environment. If it weren’t for the last year and everything from Michael Brown to Freddie Gray, there might have been recognition that AA does not need to be permanent. Given the current climate, I think regardless of the rule of law and letter of the law, Fisher will not prevail.
@Regulus7 wrote
If race-aware admissions is found to violate Title VI of the Civil Rights Act, then schools that receive federal funding will be impacted.
Of course there are many rich schools w fat endowments that may decide they don’t need Pell grants.
I will just say that it is a sad day when a supreme court justice feels that maybe we “should go to inferior schools”
Quotes from Scalia
Scalia went on to say that the country’s black scientists go to “lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.”
“I’m just not impressed by the fact that that the University of Texas may have fewer,” he said of minority students. “Maybe it ought to have fewer.”"
Funny because if "top schools"go strictly on test scores/gpa then they would be mostly Asian. I find it laughable that the prevailing thought is that it is a Black taking a Whites place, instead of a White taking Asian’s place.
This is a 14th amendment case and not Title VI. I would expect privates to fall back to a position that any repeal here doesn’t apply to them. Then the Harvard case currently waiting in lower courts would have to be heard. I am actually surprised they put that one on hold pending Fisher- different argument.
@partyof5 Fisher is not arguing for sole use of grades and test scores. Holistic would be allowed- just not the use of race.
An attorney I know well commented last night that he is confident that “Fisher” (really Edward Blum as the instigator and funder of the case and the voting rights case this term) will prevail this time. While it was upsetting to read Scalia’s comments, to me it was even more frustrating to read CJ comment inquiring what minority students bring to a physics class. The university experience is so much more than just the classes. It’s a time for personal growth and experiencing and respecting people with different values and cultures.
@gettingschooled yes, I know that, however, at the core of this and the other pending cases is that minorities got in with lower scores. You remove that, then some special snowflake will deemed they were harmed because their extracurriculars were better, and the list goes on.
Its ironic, insofar as most of the top schools used to primarily use legacy and sports as the primary hooks for underachieving academic admits. It seems that at the margin we’d go back to that bias given the risk of using URM as a deciding factor. In fact, this case would make schools deathly afraid of using URM designations in any admission decision discussion… can you image the risk of discovery with a stray email here or there about how they need more "native americans’ or ‘african americans’ to achieve their diversity targets! For most admission departments I think it just means they will have to be super careful on how they debate the URM issue in making admission decisions. Deserving URMs are still likely to gain admittance, but the demographic profile probably shifts across all the ivys and top LACs by 5-10% increase in Asians and similar decrease in URMs, 10 years from now should Fisher triumph and the decision be a broad based curtailment of AA
I think the fact that the Supreme Court agreed to hear the case is significant. It is essentially the same case they issued a ruling on in June 2013. Why grant Fisher’s Petition for Certiorari if there is not some thought about fiddling around with the ruling issued just 2 years ago?
The point he was making with his example question, I think, was about critical mass. How many/% is the correct number? He has asked that question in prior cases, but UT never had a much of a response.
Perhaps, but the fact is that we all can’t attend a ‘superior’ school – not enough room in the Inn for all of the high performers. (which is really the basis of the case)
But he was asking about the mis-match theory.
Inside Higher Ed has a review:
i don’t think any attorney knows how this case will be decided.
The key question is, what is Kennedy thinking?
His line of questioning yesterday shows that he was thinking about remanding the case all the way back to the District Court for a full trial (which has never happened in this case), but he letter expressed doubt that it would have any real effect.
I seriously doubt the SC will use this crappy case to fully reverse all of affirmative action, so I expect some type of non-decision decision (like a remand).
You may think it’s a crappy case, but as @HarvestMoon1 pointed out, it’s significant that the SCOTUS agreed to hear it not just once, but TWICE.
Why does all of this have to descend to calling people racist? Scalia was quoting an argument from one of the briefs. It is also an argument that has been made for years about the use of direct racial quotas in highly selective schools. Like it or not, there is data out there that suggests that individuals admitted through a strong race based preference struggle more in college and graduate less frequently. Would a kid who gets admitted to UT under the current program but struggles in his pre med classes have been better off going to A&M or UTEP where his pre college academic performance may have been more in line? Is the risk that some students admitted under this program will fail out worth the overall benefit to the school or the particular racial demographic? For that matter, what is the perceived benefit of this program (this is, I think, Kennedy’s point). I don’t know. But these are legitimate questions that the Court should be mindful of when making decisions that will effect the next generation of students entering college.
And no one is advocating turning all admissions decisions into a straight quantitative exercise. There certainly appears to be broad consensus that there is some merit in diversity, and it is likely that a straight holistic review process would pass muster with the current Court.