Best Post-Hearing Coverage of SCOTUS Affirmative Action Hearing

Read the full transcript from Fisher v. University of Texas at Austin here:

For U.S. News, Seth Cline provides some background in Sharp Questioning by Supreme Court Justices in Affirmative Action Case

Currently, the school grants automatic admission to Texas applicants who are in the top 10 percent of their high school’s graduating class. These students make up about three-fourths of the school’s enrollment, which is among the most diverse in the country.
For the rest of its enrollment the school considers students who did not make the 10 percent cutoff. UT says these students’ admission criteria are based on their grades and a ‘personal achievement index’, which is unrelated to academics. This rating factors in a student’s race, along with socioeconomic status and other “special circumstances”.
The case was brought by Abigail Noel Fisher, a white student from Texas who believes she was not admitted to UT because of her race.

Emily Bazelon of Slate gives us the following nuggets in her article, Between a Quota and a Hard Place:

It was Justice Stephen Breyer who framed the case of Abigail Fisher, a white applicant to the University of Texas-Austin who was denied admission four years ago, in terms of the job of the court versus the job of the schools. He pointed out that the court’s 2003 ruling, in Grutter v. Bollinger, was built to last 25 years, in the words of its author, Justice Sandra Day O’Connor. “I know time flies,” Breyer said to Fisher’s lawyer, Bert Rein. “But are you asking us to overrule”Grutter? And if so, why, given that the case “took so much time and thought and that so many people across the country rely on it?”…


[Roberts] and Alito are especially scathing about UT’s effort to promote diversity in the classroom: How could the university ever ensure minorities were adequately represented in each course? Later, Scalia asks how many people UT employs to monitor its “vicious racial program.” All of this echoes Roberts’ past words, “it’s a sordid business, this divvying us up by race.” To him, it doesn’t matter whether the government is divvying people by race to benefit historically disadvantaged groups. In Roberts’ eyes, it’s still very, very bad.

Reporting for New Yorker, Jeffrey Toobin wrote in AT THE SUPREME COURT, A TIMID DEFENSE:

Alito raised the difficult issue of race and class, which is actually a happy consequence of the development of a sizable upper-middle-class minority community. (This might be called the Sasha and Malia problem.) “If you have a [minority] applicant whose parents… put them in the top one per cent of earners in the country and both have graduate degrees, they deserve a leg up against, let’s say, an Asian or a white applicant whose parents are absolutely average in terms of education and income?” Not really, said Gregory Garre, the lawyer for the university, adding, “we want minorities from different backgrounds. We go out of our way to recruit minorities from disadvantaged backgrounds.”
Garre and the liberal justices tried so hard to say what the affirmative-action program was not that it became hard to understand what it was. At one point, Donald Verrilli, the Solicitor General, who was defending the Texas plan on behalf of the Obama Administration, said that race did not function as a tiebreaker in admissions decisions. “I don’t understand this argument,” Justice Anthony Kennedy responded, “I thought that the whole point is that sometimes race has to be a tiebreaker and you are saying that it isn’t. Well, then, we should just go away. Then we should just say you can’t use race, don’t worry about it.”



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