The Supreme Court has just finished hearing oral arguments in January on Fisher v. University of Texas at Austin, a case that argues for the end of all racial preferences in college admissions.
In the Carolina Review, James Braid summarizes one of the exchanges during those arguments that give reasons to hope that reverse discrimination may soon be history.
I’ve tried to avoid quoting at length from the oral arguments, but this exchange is perhaps the most crucial section of the entire argument. It’s why I believe affirmative action may soon be a thing of the past:
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 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 — that’s your argument? If you have an applicant with two parents, one of them is a partner in your law firm in Texas, another again a 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?
Garre didn’t give him a straight answer, but I will. Yes, under the current policy race counts above all. You can’t be too sure what’s going to happen when the final votes are counted, but that question, that last question by the swing vote Justice Anthony Kennedy, radiates skepticism. As a person who believes that prior bad acts don’t justify today’s bad policy, it’s heartening to read.