Justice Kennedy asks, we answer

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Editor’s note: On Oct. 10, the U.S. Supreme Court heard oral arguments in Fisher v. University of Texas, a case filed in 2008 by a white woman who claims UT’s race-conscious admissions policy led to the rejection of her application. On a sharply divided Court, Justice Anthony Kennedy, appointed in 1988 by President Ronald Reagan, has delivered the swing vote often and may do so again in this case. We selected some of his most memorable questions and comments from the transcript of last week’s historic oral arguments and offer our own responses about UT’s admissions policy and its effects on campus diversity.

Justice Kennedy asked Fisher’s counsel Burt Rein: “You argue that the University’s race-conscious admission plan is not necessary to achieve a diverse student body because it admits so few people, so few minorities … Then what’s the problem?”

Rein responded that UT’s race-conscious policy is unnecessary when race-neutral alternatives — like the Top 10 Percent Law — could produce greater campus diversity.

The Daily Texan’s view: Rein has a point. Statistics from the admissions office show that the holistic review process admits a much higher percentage of white students than does the Top 10 Percent Law. In 2010 and 2011, six percent of automatic admissions were granted to black students, while only five percent of holistic review admissions went to black students. In 2011, 29 percent of automatic admits were Latino and 14 percent of holistic review admissions went to Latino students.

Meanwhile, the numbers show that white applicants benefited considerably from holistic review. In 2011, 41 percent of automatic and 58 percent of holistic review admissions went to white students. The same trend was seen each year from 2007 to 2010. It’s safe to say that a class made up completely of Top 10 Percent students would be considerably more diverse than current classes, but it would also exclude private school and out-of-state applicants, students from non-ranking high schools and all the otherwise deserving students who, for whatever reason, were in their high school classes’ bottom 90 percent.

Justice Kennedy questioned Fisher’s lawyer Rein regarding a previously established precedent that universities’ use of race must be “narrowly tailored” and serve a “compelling interest”: “And in what respect does this plan fail strict scrutiny under either of those— under both of those categories?”

Rein replied that UT doesn’t have a compelling interest, stating that he doesn’t “believe they’ve shown any necessity for doing what they were doing,” and that UT didn’t adequately consider race-neutral alternatives.

DT’s view: Almost half a century of legal precedent shows that public universities do have a compelling interest in promoting on-campus diversity. UT already uses the Top 10 Percent Law — often cited by Fisher backers as the best race-neutral alternative — to account for 75 percent of each incoming class, but allowing high school rankings to determine the entire class would deny opportunities to many deserving applicants, not just underrepresented minorities. The law was in fact instituted largely to increase racial diversity, but, as Justice Ruth Bader Ginsburg pointed out, it only works “if you have heavily separated schools.” Greater racial equality is one the most important goals our nation is working to reach, so relying solely on the de facto racial segregation that still remains in Texas schools seems a rather pessimistic way to promote diversity. 

Justice Kennedy replied to UT’s counsel Greg Garre, a former Solicitor General of the United States, who argued that admitting students with different experiences — not just different races — is an important factor in creating a positive learning environment for all students on campus: “So what you’re saying is that what counts is race above all.”

DT’s view: This exchange came on the heels of a discussion of the importance of applicants’ economic backgrounds. Justice Antonin Scalia, the most outspoken conservative on the Court, implied that a child of wealthy educated parents who happens to be of an underrepresented minority — Hispanic or African-American — does not deserve any preferential treatment compared to a white student from an “absolutely average” background. Garre contended that the University recruits black and Hispanic students from all different backgrounds, and that a wealthy minority applicant wouldn’t have any advantage over a middle-class white applicant. 

Garre’s insistence on the importance of “different experiences” is the linchpin of UT’s argument. Due to the extent that race and socioeconomics continue to be associated with one another, scarcer are children of wealthy, highly educated African-American parents than of their white counterparts. That is an ugly truth, but one that UT recognizes and seeks to change. Scalia’s hypothetical upper crust black student, as a relative rarity, would bring a different set of experiences to share with peers at UT than would a white student from the same economic background.

Justice Kennedy raised a common criticism of affirmative action policies —  that they serve as a “tiebreaker” to decide which of two otherwise identical applicants gain admission to a university. Near the end of the hearing , Kennedy stated: “I thought that the whole point is that sometimes race has to be a tiebreaker and you are saying that it isn’t ... Then we should just say, ‘you can’t use race, don’t worry about it.’”

DT’s view: UT’s brief makes clear that in holistic review race is only “a factor of a factor of a factor.” It is one of seven attributes considered as “special circumstances,” and those circumstances comprise only one of six equally weighted factors that make up an applicant’s Personal Achievement Score (PAS). The PAS, in turn, does not include evaluations of the mandatory essays and is only one part of an applicant’s overall score.

After making these calculations for each applicant, UT graphs the scores in cells on a matrix and draws a “stair-step line” to determine which cells gain admission and which do not. Never does an admissions officer line up two quantitatively identical applications, one from a white applicant and one from a black applicant, and toss out the white student’s in the interest of diversity. Race is only one of many factors UT considers in order to establish a level playing field and acknowledge the impediments and advantages afforded different students from different backgrounds.