WASHINGTON D.C. – Questioning the necessity of using race in college admissions, both sides of the Supreme Court’s political spectrum called upon the University and Abigail Fisher to demonstrate how diversity is individually decided at UT.
The justices centered their questioning on the concept of “critical mass” – the amount of racial representation a college would need to call itself diverse — to understand how necessary the use of race as a factor in admissions is for UT.
Current law requires colleges to use race explicitly to encourage a diverse student body, and UT lacks clear ways of measuring the success of its race-inclusive policies, argued Bert Rein, Fisher’s legal counsel.
“We recognize that there is an interest which is cognizable in diversity,” Rein said. “But what we are concerned about is universities like UT that have read it to be green light to use race with no discernible target, critical mass.”
Rein said this caused undue harm to students that were not underrepresented according to the University.
Justice Sonia Sotomayor took issue with Rein’s arguments, saying that by requiring targets, universities would be making their policies unconstitutional under the court’s rulings in Grutter v. Bollinger. Decided in 2003, the Grutter case established that universities may include race as one factor for admissions decisions.
“Boy, it sounds awfully like a quota to me, which Grutter said you should not be doing,” Sotomayor said. “[Grutter said] instead you should be setting an individualized assessment of the applicants.”
UT factors an applicant’s race into admissions decisions for students not automatically admitted based on high school class rank. UT admits close to one quarter of its students under its race-conscious holistic review process.
UT admits more white students than any other racial group under its race-conscious admissions policy, UT records show. The University has admitted lower percentages of black and Hispanic students through race-conscious admissions than through race-neutral admissions every year since 2007.
Gregory Garre, UT’s counsel, said this data demonstrates UT meets legal precedents set under Grutter because the University’s race-conscious admissions benefit all groups and does not set any sort of target.
Garre said there was no way to quantify critical mass.
“I think the standard you would apply is to look to whether or not the University reached an environment in which members of underrepresented minorities do not feel like spokespersons for their race, an environment where the benefits are realized,” Garre said.
Garre also said UT did not rank students in ways where race could be a “tie-breaker” between two applicants, but Justice Samuel Alito questioned the feasibility of his comment.
Justice Anthony Kennedy, widely perceived as the possible swing vote in the case, asked several questions relating to possible alternatives in creating diversity besides using race.
Rein said the University did not seek alternatives to race in crafting its policy.
“Race should have been a last resort and it was a first resort,” Rein said.
Several demonstrations occurred outside the courthouse while the justices questioned both sides.