Down The Affirmative Action Rabbit Hole At The Supreme Court

From the justices` questions to the U. of Texas`s lawyer (Mr. Garre) defending the University of Texas`s racial/ethnic preference systems. It gets pretty comic.

(By the way, a couple of days ago the humor/satire site Fark linked to my annotation of a Wall Street Journal article on the the latest kindergarten contortions in New York City. It got 200+ comments on Fark, which get progressively better as more readers start to wrap their heads around it. But, if Fark is looking for humor in the news, they should check out this cross-examination of an affirmative action defender by the Supreme Court`s Murderer`s Row:]

CHIEF JUSTICE ROBERTS: Counsel, before — I need to figure out exactly what these numbers mean. Should someone who is one-quarter Hispanic check the Hispanic box or some different box?

MR. GARRE: Your Honor, there is a multiracial box. Students check boxes based on their own determination. This is true under the Common Application –­

CHIEF JUSTICE ROBERTS: Well, I suppose a person who is one-quarter percent Hispanic, his own determination, would be I`m one-quarter percent Hispanic.

MR. GARRE: Then they would check that box, Your Honor, as is true -­

CHIEF JUSTICE ROBERTS: They would check that box. What about one-eighth?

[How about one-thirtysecond American Indian?]

MR. GARRE: Your Honor, that was — they would make that self-determination, Your Honor. If anyone, in any part of the application, violated some honor code then that could come out –­

CHIEF JUSTICE ROBERTS: Would it violate the honor code for someone who is one-eighth Hispanic and says, I identify as Hispanic, to check the Hispanic box?

[Honor code? We don`t need no steeenking honor code!]

MR. GARRE: I don`t think — I don`t think it would, Your Honor. I don`t think that that issue would be any different than the plan upheld in Grutter or the Harvard plan or in Bakke.

CHIEF JUSTICE ROBERTS: You don`t check in any way the racial identification?

MR. GARRE: We do not, Your Honor, and no college in America, the Ivy Leagues, the Little Ivy Leagues, that I`m aware of.

CHIEF JUSTICE ROBERTS: So how do you know you have 15 percent African American — Hispanic or 15 percent minority?

MR. GARRE: Your Honor, the same way that that determination is made in any other situation I`m aware of where race is taken into account.

CHIEF JUSTICE ROBERTS: You say the same way. What is that way?

MR. GARRE: The persons self-identify on that form.

[The issue, obviously, is that in a country where the President is half black and chooses to identify on his 2010 Census form as only black, there are no downsides to identifying dubiously as belonging to a Designated Victim Group, other than the individual`s own conscience and sense of honor. We should not underestimate the sense of honor among white people, but it`s a little much to assume that it will remain wholly intact under long-term assault.

By the way, for the benefit of the Justices, here is the Pew Hispanic Center`s intentionally hilarious guide to Who Is Hispanic?]

JUSTICE SCALIA: Do they have to self-identify?

MR. GARRE: They do not, Your Honor. Every year people do not and many of those applicants are admitted.

JUSTICE SCALIA: And how do they decide? You know, it`s — they want not just a critical mass in the school at large, but class by class? How do they figure out that particular classes don`t have enough? What, somebody walks in the room and looks them over to see who looks — who looks Asian, who looks black, who looks Hispanic? Is that how it`s done?

MR. GARRE: No, Your Honor, and let me try to be clear on this. The university has never asserted a compelling interest in any specific diversity in every single classroom. It has simply looked to classroom diversity as one dimension of student body diversity.

JUSTICE SCALIA: I don`t know what you are talking about. I mean it is either a factor that is validly in this case or it isn`t. Do they look to individual classroom diversity or not? And if so, how do they decide when classes are diverse?

MR. GARRE: This Court in Grutter, Your Honor, and maybe the most important thing that was said during the first 30 minutes was, when given an opportunity to challenge Grutter, I understood my friend not to ask this Court to overrule it. This Court in Grutter recognized the obvious fact that the classroom is one of the most important environments where the educational benefits of diversity are realized, and so the University of Texas, in determining whether or not it had reached a critical mass, looked to the classroom along with –­

JUSTICE SCALIA: Fine. I`m asking how. How did they look to the classroom?

MR. GARRE: Well, Your Honor –­

JUSTICE SCALIA: Did they require everybody to check a box or they have somebody figure out, oh, this person looks 1/32nd Hispanic and that`s enough?

MR. GARRE: They did a study, Your Honor, that took into account the same considerations that they did in discussing the enrollment categories –­

JUSTICE SCALIA: What kind of a study? What kind of a study?

MR. GARRE: Well, Your Honor, it`s in the Supplemental Joint Appendix.

JUSTICE SCALIA: Yes, it doesn`t explain to me how they go about, classroom by classroom, deciding how many minorities there are.

MR. GARRE: Your Honor, there are student lists in each classroom. The student lists –

CHIEF JUSTICE ROBERTS: There are student lists in each classroom that have race identified with the students.

MR. GARRE: No, no, Your Honor. Of course, each classroom, the university knows which students are taking its classes and one can then, if you want to gauge diversity in the classrooms, go back –­

CHIEF JUSTICE ROBERTS: Oh, you go back to what they checked on the form.

application form in deciding whether Economics 201 has a sufficient number of African Americans or Hispanics?

MR. GARRE: That is information that is available to the university, Your Honor, the race of students if they`ve checked it on the application. But I do want to be clear on this classroom diversity study. This was only one of many information points that the university looked to.  

JUSTICE ALITO: Well, on the classroom diversity, how does the non-Top 10 Percent part of the plan further classroom diversity? My understanding is that the university had over 5,000 classes that qualified as small and the total number of African Americans and Hispanics who were admitted under the part of the plan that is challenged was just a little over 200. So how does that — how does that — how can that possibly do more than a tiny, tiny amount to increase classroom diversity?

MR. GARRE: Well, Your Honor, first I think that 200 number is erroneous. There have been many more minority candidates –­

JUSTICE ALITO: Per class?

MR. GARRE: No, not — not on a per-class basis.

JUSTICE ALITO: Individuals in class.

MR. GARRE: I think in looking at the classrooms, Your Honor, what the university found was shocking isolation.

[I am shocked, SHOCKED.]

JUSTICE ALITO: How many — how many non-Top 10 Percent members of the two minorities at issue here are admitted in each class?

MR. GARRE: Your Honor, we didn`t look specifically at that determination. What we did — in other words, to try to find whether there were holistic admits or percentage admits, we did conclude in 2004 -­ and again this was before — we did the classroom study before the plan at issue was adopted and at that time there were no holistic admits taking race into account. And what we concluded was that we simply — if you looked at African Americans, for example, in 90 percent of the classes of the most common participatory size –­

JUSTICE ALITO: I really don`t understand your answer. You know the total number of, let`s say, African Americans in an entering class, right? Yes or no?

MR. GARRE: Yes, Your Honor.

JUSTICE ALITO: And you know the total number who were admitted under the Top 10 Percent Plan?

MR. GARRE: We do, Your Honor. But again at the time –­

JUSTICE ALITO: If you subtract A from B you`ll get C, right?

MR. GARRE: Your Honor, at the time -­

JUSTICE ALITO: And what is the value of C per class?

MR. GARRE: Your Honor, I don`t know the answer to that question, and let me try to explain why the university didn`t look specifically to that.

Because at the time that the classroom diversity study was conducted, it was before the holistic admissions process at issue here was adopted in 2003-2004. And so that determination wouldn`t have been as important as just finding out are African Americans or Hispanics, underrepresented minorities, present at the university in such numbers that we are not experiencing racial isolation in the classroom.

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?

MR. GARRE: Your Honor, we don`t have one. And this Court in Grutter -­ [What`s going on here is that the 1978 Bakke decision more or less legalized quotas as long as they aren`t referred to as quotas. Since then, quota supporters have started to use the term "critical mass" to justify quotas. Now, "critical mass" sounds very scientific and quantitative (if you have a critical mass of plutonium of a certain amount, then BOOM), but if the quota supporters ever let themselves be pinned down to putting a number to it, then it sounds a lot like a quota.

The University of Texas at Austin has 38,400 undergraduates and about 15,000 are nonwhite. A couple of thousand are black. So, keep that in mind in the subsequent gang-ups.]

CHIEF JUSTICE ROBERTS: So how are we supposed to tell whether this plan is narrowly tailored to that goal?

MR. GARRE: To look to the same criteria of this Court in Grutter. This Court in Grutter specifically rejected the notion that you could come up with a fixed percentage. Now -­

JUSTICE ALITO: Does critical mass vary from group to group? Does it vary from State to State?

MR. GARRE: It certainly is contextual. I think it could vary, Your Honor. I think — let me first say that my friends have, throughout this litigation, not in this Court, asserted 20 percent as a critical mass and that`s lumping together different minority groups.

JUSTICE ALITO: But could you answer my question? What does the University of Texas — the University of Texas think about those questions? Is the critical mass for the University of Texas dependent on the breakdown of the population of Texas?

MR. GARRE: No, it`s not at all.

JUSTICE ALITO: It`s not.

MR. GARRE: It`s not at all. It`s looking to the educational benefits of diversity on campus, and I think we actually agree on what that means and what Grutter said it meant in terms of –­

JUSTICE GINSBURG: Mr. Garre, could you explain — I think you were trying to before — what seems to me the critical question in this case: Why didn`t the 10 percent solution suffice? There were a substantial number of minority members admitted as a result of the 10 percent solution. Why wasn`t that enough to achieve diversity?

MR. GARRE: Let me make a couple of points, Your Honor. First, if you just looked at the numbers -­ we don`t think it`s the numbers, but if you looked at the numbers after 7 years, racial diversity among these groups at the University of Texas had remained stagnant or worse. 2002, African American enrollment had actually dropped to 3 percent.

[That`s about a thousand blacks among undergraduates.]

That`s one part of it. The other part of it is if you look at the admissions under the top 10 percent plan, taking the top 10 percent of a racially identifiable high school may get you diversity that looks okay on paper, but it doesn`t guarantee you diversity that produces educational benefits on campus. And that`s one of the considerations that the university took into account as well.

JUSTICE SCALIA: I don`t understand that. Why? Why doesn`t it?

MR. GARRE: Because, Your Honor, as is true for any group, and the Harvard plan that this Court approved in Bakke specifically recognized this, you would want representatives and different viewpoints from individuals within the same — the same racial group, just as you would from individuals outside of that.

JUSTICE SCALIA: What kind of viewpoints? I mean, are they political viewpoints?

MR. GARRE: Anyone`s experiences, where they grew up, the situations that they — that they experience in their lives are going to affect their viewpoints.

JUSTICE SCALIA: But this has nothing to do with racial diversity. I mean, you`re talking about something else.

MR. GARRE: Your Honor, I think it direct impacts the educational benefits of diversity in this sense, that the minority candidate who has shown that -­ that he or she has succeeded in an integrated environment, has shown leadership, community service, the other factors that we looked at in holistic review, is precisely the kind of candidate that`s going to come — come on campus, help to break down racial barriers, work across racial lines, dispel -­ stereotypes –­

JUSTICE SCALIA: Also, the kind that is likely to be included within the 10 percent rule. And, incidentally, when was the 10 percent rule adopted?

MR. GARRE: 1998, Your Honor. But with respect to your factual point, that`s absolutely wrong, Your Honor. If you look at the admissions data that we cite on page 34 of our brief, it shows the breakdown of applicants under the holistic plan and the percentage plan. And I don`t think it`s been seriously disputed in this case to this point that, although the percentage plan certainly helps with minority admissions, by and large, the — the minorities who are admitted tend to come from segregated, racially-identifiable schools.

JUSTICE ALITO: Well, I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don`t think I`ve ever seen before.

 The top 10 percent plan admits lots of African Americans — lots of Hispanics and a fair number of African Americans. But you say, well, it`s — it`s faulty, because it doesn`t admit enough African Americans and Hispanics who come from privileged backgrounds. And you specifically have the example of the child of successful professionals in Dallas.

 Now, that`s your argument? If you have -­ you have an applicant whose parents are — let`s say they`re — one of them is a partner in your law firm in Texas, another one is a part — is another corporate lawyer. They have income that puts them in the top 1 percent of earners in the country, and they have -­ parents 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?

MR. GARRE: No, Your Honor. And let me -­ let me answer the question.

 First of all, the example comes almost word for word from the Harvard plan that this Court approved in Grutter and that Justice Powell held out in Bakke.

JUSTICE ALITO: Well, how can the answer to that question be no, because being an African American or being a Hispanic is a plus factor.

MR. GARRE: Because, Your Honor, our point is, is that we want minorities from different backgrounds. We go out of our way to recruit minorities from disadvantaged backgrounds.

 

JUSTICE KENNEDY: So what you`re saying is that what counts is race above all.

MR. GARRE: No, Your Honor, what counts is different experiences –­

 

JUSTICE KENNEDY: Well, that`s the necessary — that`s the necessary response to Justice Alito`s question.

MR. GARRE: Well, Your Honor, what we want is different experiences that are going to — that are going to come on campus –­

 

JUSTICE KENNEDY: You want underprivileged of a certain race and privileged of a certain race. So that`s race.

MR. GARRE: No, Your Honors, it`s — it`s not race. It`s just the opposite. I mean, in the LUAC decision, for example, this Court said that failing to take into account differences among members of the same race does a disservice –­

 

JUSTICE KENNEDY: But the reason you`re reaching for the privileged is so that members of that race who are privileged can be representative, and that`s race. I just –­

MR. GARRE: It`s — it`s members of the same racial group, Your Honor, bringing different experiences. And to say that — if you took any racial group, if you had an admissions process that only tended to admit from a — people from a particular background or perspective, you would want people from different perspectives.

CHIEF JUSTICE ROBERTS: Counsel –­

MR. GARRE: And that`s — that`s the interests that we`re discussing here. It`s the interests that the Harvard plan specifically adopts and lays out –­

CHIEF JUSTICE ROBERTS: I understand my job under our precedents to determine if your use of race is narrowly tailored to a compelling interest.

 The compelling interest you identify is attaining a critical mass of minority students at the University of Texas, but you won`t tell me what the critical mass is. How am I supposed to do the job that our precedents say I should do?

MR. GARRE: Your Honor, what — what this Court`s precedents say is a critical mass is an environment in which students of underrepresented –­

CHIEF JUSTICE ROBERTS: I know what you say, but when will we know that you`ve reached a critical mass?

MR. GARRE: Well –­

CHIEF JUSTICE ROBERTS: Grutter said there has to be a logical end point to your use of race. What is the logical end point? When will I know that you`ve reached a critical mass?

[What the University of Texas bigshots would say if they could be completely honest, not only with the Supreme Court but inside their own minds is: "Look, we know we`ve got a good thing going here with all sorts of smart white and Asian students wanting to come here, and we don`t intend to screw it all up the way CCNY did in 1969 by letting in so many Hispanics and blacks that we kill the goose that lays the golden eggs. Trust us to be cynically self-serving."]

MR. GARRE: Your Honor, this question, of course, implicates Grutter itself. And, again, I understood my friend not to challenge that. They haven`t challenged that diversity is a compelling interest at all. What — what we look to, and we think that courts can review this determination, one, we look to feedback directly from students about racial isolation that they experience. Do they feel like spokespersons for their race. [This "does not feel like spokesperson for his or her race" test of when a critical mass is big enough is a very weird one since racial preferences are defended by people who are professional spokespeople for their race. The Xochitl Hinojosa-type ethnic spokespersons tend to be ethnic warriors for increasing the number of people of their supposed group in the country so they can make even more money as spokesmodels.]

CHIEF JUSTICE ROBERTS: So, what, you conduct a survey and ask students if they feel racially isolated?

[All teenagers feel isolated. I remember watching a Britney Spears video back about 12 years ago where she plays a high school girl who feels so lonely. She really was getting into it.]

MR. GARRE: That`s one of the things we looked at.

CHIEF JUSTICE ROBERTS: And that`s the basis for our Constitutional determination?

MR. GARRE: Your Honor, that`s one of the things that we looked at.

CHIEF JUSTICE ROBERTS: Okay. What are the others?

MR. GARRE: Another is that we did look to enrollment data, which showed, for example, among African Americans, that African American enrollment at the University of Texas dropped to 3 percent in 2002 under the percentage plan.

CHIEF JUSTICE ROBERTS: At what level will it satisfy the critical mass?

MR. GARRE: Well, I think we all agree that 3 percent is not a critical mass. It`s well beyond that.

[Three percent is about 1,000 black undergraduates on the UT Austin campus.]

CHIEF JUSTICE ROBERTS: Yes, but at what level will it satisfy the requirement of critical mass?

MR. GARRE: When we have an environment in which African Americans do not -­

CHIEF JUSTICE ROBERTS: When — how am I supposed to decide whether you have an environment within particular minorities who don`t feel isolated?

MR. GARRE: Your Honor, part of this is a -­is a judgment that the admin — the educators are going to make, but you would look to the same criteria -­

["You`ll decide, Mr. Chief Justice, when self-appointed minority spokespersons damn well tell you to decide that minority students no longer feel like minority spokespersons, and not a minute before!]

CHIEF JUSTICE ROBERTS: So, I see — when you tell me, that`s good enough.

[Roberts gets the joke.]

MR. GARRE: No, Your Honor, not at all. You would look to the criteria that we looked at, the enrollment data, the feedback from the students. We also took into account diversity in the classroom. We took into account the racial climate on campus.

JUSTICE ALITO: But would 3 percent be enough in New Mexico, your bordering state, where the African American population is around 2 percent?

MR. GARRE: Your Honor, I don`t think it would.

[Perhaps all the black college students in New Mexico should be bussed to Texas in order to benefit from Critical Mass. Hey, it worked in Boston!]

I mean, our concept to critical mass isn`t tied to demographic. It`s undisputed in this case that we are not pursuing any demographic goal. That`s on page 138 of the Joint Appendix. All of — I think many key facts are undisputed here. It`s undisputed that race is only a modest factor. It`s undisputed that we`re taking race into account only to consider individuals in their totality. JUSTICE SOTOMAYOR: Mr. Garre, I think that the issue that my colleagues are asking is, at what point and when do we stop deferring to the University`s judgment that race is still necessary? That`s the bottom line of this case. And you`re saying, and I think rightly because of our cases, that you can`t set a quota, because that`s what our cases say you can`t do. So if we`re not going to set a quota, what do you think is the standard we apply to make a judgment?

MR. GARRE: I think the standard you would apply is the one set forth in Grutter, and it comes from Justice Powell`s opinion in Bakke, that 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, members — an environment where cross-racial understanding is promoted, an environment where the benefit — educational benefits of diversity are realized. And the reason why the University of Texas concluded that that environment was not met here, it laid out in several different information points that this Court can review -­

JUSTICE SCALIA: But that holds for only -­ only another what, 16 years, right? Sixteen more years, and you`re going to call it all off. …

JUSTICE ALITO: Well, in terms of diversity, how do you justify lumping together all Asian Americans? Do you think — do you have a critical mass of Filipino Americans? Cambodian Americans -­

MR. GARRE: Your Honor -­

JUSTICE ALITO: — Cambodian Americans?

[This is hardly just theoretical. Lots of Asian spokespersons argue for more finely dividing the Asian category so that Cambodians and Hmongs and the like can be considered Underrepresented Minorities. Indeed, Pacific Islanders used to be lumped with Asians, but in the 1990s they got the Clinton Administration to give them a separate racial category so they can benefit from quotas.]

MR. GARRE: — the common form that`s used has Asian American, but also, next to that, has a form that says country of origin where that can be spelled out.

JUSTICE ALITO: But do you have a critical mass as to all the subgroups that fall within this enormous group of Asian Americans?

MR. GARRE: Your Honor, we`ve looked to whether or not we have a critical mass of underrepresented minorities, which is precisely what the Grutter decision asks us to do. I think — if I can make a quick point on jurisdiction –­

JUSTICE KENNEDY: If I could, before we get to that.

MR. GARRE: I`m sorry.

JUSTICE KENNEDY: Suppose we — that you, in your experience identify a numerical category a numerical standard, a numerical designation for critical mass: It`s X percent. During the course of the admissions process, can the admissions officers check to see how close they are coming to this numerical -­

MR. GARRE: No. No, Your Honor, and we don`t. On page 389 -­

JUSTICE KENNEDY: You — you cannot do that?

[Mr. Garre must be really sweating now. He needs Kennedy`s vote and that`s not at all a helpful question that Kennedy just asked.]

MR. GARRE: We — we wouldn`t be monitoring the class. I think one of the problems -­

JUSTICE KENNEDY: But isn`t that what happened in Grutter; it allowed that.

MR. GARRE: It did, Your Honor. It was one of the things -­

JUSTICE KENNEDY: So are you saying that Grutter is incorrect?

MR. GARRE: No, Your Honor. It was one of the things that you pointed out in your dissent. What I`m saying is we don`t have that problem, because -­

JUSTICE KENNEDY: I`m — I`m asking whether or not you could do that. And if –­

MR. GARRE: I don`t think so, because the Grutter majority didn`t understand it to be monitoring for the purposes of reaching a specific demographic.

CHIEF JUSTICE ROBERTS: They don`t — they don`t monitor, but race is the only one of your holistic factors that appears on the cover of every application, right?

MR. GARRE: Well, all the holistic factors are taking into account on the application, and they`re listed at various points on the application.

CHIEF JUSTICE ROBERTS: I`m sorry. The question was whether race is the only one of your holistic factors that appears on the cover of every application.

MR. GARRE: That — that is true on the cover of the application.