Thirty years ago this fall I was teaching ethics at my alma mater, Randolph-Macon College.  I had a one-year appointment as a sabbatical replacement, and my classes had a freshness and electricity that come from the combination of ignorance and terror. I loved that year, and have often wondered if I could have sustained the magic in subsequent years.

One of the case studies I used for the class was Bakke, the 1978 Supreme Court case dealing with affirmative action in college admissions.  On that issue, as with others, there were two extremes that I needed to watch out for in my students. Some of them knew what they believed so passionately that they had a difficult time understanding or appreciating differing positions.  Others saw both sides of an issue too clearly and struggled to figure out what they believed.

I found myself identifying with the second group when I read the transcript of the oral arguments for Fisher v. Texas, the affirmative action case that the U.S. Supreme Court will be deciding during the current term.  As I try to sort out the complex issues associated with affirmative action, my mind is a mass of contradictions (which may explain why it’s taken me a week longer to write this than planned), with more questions than answers.

--What is the proper balance between giving every applicant fair and individual consideration in the admissions process and meeting institutional goals and needs?

--Does an individual have a right to attend a particular college or university, and when is not being admitted evidence of unfair treatment? 

--How much discretion should colleges and universities have to determine the composition of their student bodies? 

--Are admission preferences wrong even when done for the right reasons? 

--Why are those who would have found nothing wrong with racial discrimination in the 1950’s so exercised by affirmative action?

--At what point will affirmative action no longer be necessary?


In the coming months I hope to discuss in more detail some of the issues and arguments related to the Fisher case and the larger issue of affirmative action.

The most interesting thing coming out of the oral arguments in Fisher was discussion about the concept of “critical mass.” That discussion is the next step in the evolution of the affirmative action debate over the past 35 years. 

In the 1978 Bakke case, the Supreme Court issued the judicial equivalent of a boxing match split decision, declaring unconstitutional a quota system used by the medical school at the University of California at Davis whereby minority applicants competed for 16 of the 100 places in the class in a separate admissions process. The deciding vote came from Justice Lewis Powell. In an opinion joined by no other justice he recognized a compelling state interest in allowing race to be taken into consideration in admissions in a narrowly-tailored way to promote educational diversity.  That was a monumental shift; prior to that point the sole justification for affirmative action programs had been as a remedy for past discrimination.

Fast forward to 2003, when the Supreme Court heard two affirmative action cases, both involving the University of Michigan.  Gratz v. Bollinger challenged Michigan’s undergraduate admissions process that gave minority applicants bonus points in the numerical system used to determine admission, and the Court ruled it unconstitutional.  Grutter v. Bollinger (Lee Bollinger, then President at Michigan and currently President of Columbia University), challenged a law school admissions policy designed to produce critical mass in the ethnic composition of the entering class.

Grutter produced a divided court.  A five-member majority led by Justice Sandra Day O’Connor accepted the argument that a critical mass of diversity is necessary for educational reasons.  The other four justices had strong reservations, with Chief Justice Rehnquist calling critical mass “a naked effort to achieve racial balancing” and Justice Anthony Kennedy (widely seen as the swing vote in the current Court) concluding that individual evaluation of each applicant was sacrificed for the cause of diversity. 

That brings us to today. The argument for critical mass is that a diverse student body produces educational benefits, and that there must be a critical mass of students from an underrepresented group in order for individual students not to feel isolated and not to be seen as spokespersons for a single “minority” viewpoint. 

I  accept the continuing need for affirmative action and buy the critical mass argument in theory, but found much of the discussion before the court underwhelming.  Here are some observations about critical mass and the Fisher oral arguments: 

--The wrinkle in the Fisher case is that the University of Texas operates under a state law requiring that 75% of in-state admissions rank in the top 10% of their high school.  That law raises its own set of issues, but it produces diversity.  Why, then, is affirmative action needed on top of the 10% program? At one point the attorney for UT seemed to suggest that affirmative action was necessary to attract minority students from advantaged socioeconomic backgrounds, an argument Justice Samuel Alito claimed he’d never heard advanced before. 

--“Critical mass” is applied selectively by the University of Texas.  If it is so important, shouldn’t it be utilized for a whole range of minority groups, rather than a couple?

--Texas argued that achieving a critical mass was important due to “shocking isolation” in the classroom, but under questioning didn’t seem to have collected evidence to support that.

--Minority enrollment at UT is calculated based only on information self-reported by applicants.

--Critical mass is not tied to the population of a state.

--How do you define “critical mass” and how do you know when you’ve achieved it?  Sensing entrapment, both attorneys dodged that question like they were in a presidential debate.  If you answer with a fixed number, that’s a quota, outlawed by Bakke.  Grutter seemed to outlaw the setting of goals, although I would argue that what is wrong is not setting a goal, but rather manipulating the admissions process to engineer a particular result, which seems to be Justice Kennedy’s primary criticism in his Grutter dissent.

--Justice Scalia and Solicitor General Donald Verrilli agreed that the term “critical mass” assumes some sort of numerical measure that may focus the issue in an unhelpful direction.

--The multiple attempts to avoid defining “critical mass” brought to mind Justice Potter Stewart’s definition of pornography, “I know it when I see it.”

--And a final thought—this case reminds us that the most profound outcome of the Presidential election may be the opportunity to make multiple Supreme Court appointments and determine the direction of the Court for a generation.