Five (Somewhat) Unpredictable Aspects of this Week’s Oral Argument in Fisher v. University of Texas at Austin

Many facets of Wednesday’s oral argument in the Fisher v. University of Texas (UT) at Austin affirmative action case were not particularly surprising: Justices who have been very skeptical of affirmative action in the past (Chief Justice Roberts and Justices Scalia and Alito) signaled their skepticism in the questions they asked of the lawyer for the University (Gregory Garre). Justice Thomas was quiet (again not a surprise since he rarely says anything at oral argument) but gave no indications he is more tolerant of race-based affirmative action than he has been in the past. Expected swing Justice Anthony Kennedy seemed generally to side with the more conservative folks (as he does in most race cases). And the justices who have seemed deferential to universities to make use of affirmative action in the past (especially Justices Ginsburg and Sotomayor) seemed to accept UT’s decision to use race in the program used to admit 25 percent of its incoming undergraduate freshman class.

Moving beyond expected bottom-line outcomes for the justices, much of the substance of the discussion was also not shocking. Skeptics of UT’s use of race pressed the University on why use of race was necessary and why other approaches, including expanded use of the so-called “percent plan” by which 75 percent of UT’s class is admitted by drawing from the top ranks (10 or so percent) of all high schools in the state—a plan that (because of residential segregation) has generated some racial diversity at the University. These skeptics also (again somewhat predictably) characterized the percentage plan as race-neutral even though (as Justice Ginsburg pointed out, just as she has in the past) the plan was almost certainly chosen in large part because of its racial effects.

So much of the argument unfolded true to expected form. But here, in brief, are five things I found somewhat surprising about the substance of what various justices said:

The Possibility of Yet Another Remand

Justice Kennedy (again, likely the pivotal vote) spent a fair amount of time musing about whether the educational benefits of supplementing the percent plan by considering the race of applicants admitted outside the percent plan could be better understood after more evidence was presented to and vetted by the district court. When the Fisher case was last before the Court (in 2013), it was remanded to the Fifth Circuit and so yet another remand (all the way back to the trial court) would not necessarily make the federal judicial system look particularly efficient. And I don’t actually expect another remand (because I imagine Justice Kennedy will be convinced that it was the University’s burden already (under so-called “strict scrutiny” applicable in race-based affirmative action cases) to place into the record all the underlying support behind the University’s pedagogical decision to make use of race. But the fact that Justice Kennedy is even thinking about this option (assuming his questions were earnest)—an option the liberals would accept even as they might prefer an outright affirmance of the Fifth Circuit and the University)—is quite interesting.

The Lack of Agreement on How Much Race Has Affected Admission Outcomes

It is one thing to say, as the plaintiff’s lawyer challenging UT’s program did, that we cannot know in any individual admitted applicant’s case whether her race was a “but for” cause of her admission—that is, whether she would not have been admitted but for her minority race. It is another thing for the record to be unclear—and the competing characterizations by the two sides seemed to suggest it was unclear—about how much racial diversity at the University has increased on account of the University’s decision to take race into account. I realize, of course, that one cannot conduct a controlled experiment when changes in the year-by-year data we have might be attributable to factors other than the University’s decision to take race into account. But I was still surprised at how far apart the parties seemed to be on this essentially factual question.

The Conservatives’ Suggestion That a Small Use of Race is Harder to Justify than a More Aggressive One

To the extent that the number of instances in which race seemed to be a “but for” cause of admission is small rather than large, I was intrigued to hear the skeptics of affirmative action suggest that this would be a reason to invalidate Texas’ program. The notion seems to be that, given how divisive and incendiary the use of race can be—and has proven to be—in America, race consciousness is not a viable option if its use does not make a huge dent in the lack-of-diversity problem; there simply is not enough diversity bang for the contentiousness buck.

There is a certain logical coherence to this argument, but it runs up against a competing principle that the Court has long embraced—that smaller, incidental, “tie-breaking” uses of race are much easier to justify than are huge preferences or plusses. I suppose the conservatives’ position is: if the use of a small plus (which is all that is allowed) doesn’t generate a big return, then no race at all can be used. Perhaps, but it seems somewhat counterintuitive to say you can’t move in the right direction merely because the movement isn’t very dramatic.

The Reappearance of Possible Mootness

In her questioning, Justice Ginsburg resurfaced the question of why the University couldn’t make this case go away by refunding the plaintiff the application fee money she sought as damages, inasmuch as her original claim for injunctive relief—an order directing the University to reconsider her application without regard to race—has long since become irrelevant after she graduated from another university. (I wrote an earlier column about this aspect of the case when it was before the Court before.)

The lawyer for the plaintiff said additional damages (in the form of lower lifetime earnings on account of having attended another university) would be in play, and the pleadings could be amended to assert and prove up additional damages. I’m not sure that is true, since the complaint filed in the case alleged damages “in the form of”—rather than “including but not limited to”—a refund of the application fee. And the fact that the complaint seeks (in a boilerplate way) other relief as may be “just” may not save the plaintiff from what seems to be a poorly narrow characterization of damage components. But what I found particularly interesting is that the Chief Justice interjected (and suggested) that the plaintiff could turn down any tender by the University, and this might avoid the mootness problem. The effect vel non of tender is the subject of another case this term, Campbell-Ewald Company v. Gomez (argued in October), and followers of that case may read tea leaves from what the Chief said on Wednesday.

The Meaning of “Sunsetting” Language in Grutter

The conservative justices invoked language from the end of Justice O’Connor’s majority opinion in Grutter v. Bollinger in 2003 upholding the University of Michigan Law School’s use of race to suggest that there is a clear time limit on the ability of governments in the United States to take race into account in university admissions. What the opinion said (a dozen years ago) was: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”‘ Without getting too deeply into the issue, I should say that this language does not necessarily hold (as conservatives seem to think) that there is a constitutional expiration date on the use of affirmative action. As Evan Caminker and I wrote in a law review article shortly after Grutter came down, there are other possible readings, including “nothing more than her (and the Court’s) fervent desire [and expectation] that the number of minority law school candidates with top grades and test scores would naturally increase so dramatically over the next quarter century that racial diversity in all competitive law schools would exist even if it were not pursued as a distinct admissions goal, or if it were pursued only in a race-neutral way.” In any event, I am a bit surprised that the conservatives’ reading of Grutter (the first seeds of which were planted in Justice Thomas’s dissent in that very case) haven’t gone more aggressively challenged.