I am not a fan of movie sequels, and don’t get me started on remakes.  Do we really need a new version of Point Break without Keanu Reeves and Patrick Swayze (and did we need the version with them)?  Apparently there is talk about remaking a different Swayze movie, Roadhouse, where he plays a Ph.D. in Philosophy who utilizes his philosophical training as a bar bouncer.  It’s my favorite bad movie.


While cinema scholars may choose to differ, I have never seen a movie sequel that is better than the original.  The one sequel that could have broken that rule never got made, for reasons that may seem obvious.  The 1980’s movie Flashdance was about a welder who dreamed of being a ballet dancer.  If Flashdance 2 had been about a dancer who dreams of becoming a welder, that’s a movie I would pay to see.


Are Supreme Court case sequels any better than movie sequels?  Apparently not, based on comments made by Justice Anthony Kennedy during the recent oral arguments for the Court’s rehearing of the affirmative action case Fisher v. Texas.  “We’re just arguing the same case,” complained Kennedy, generally considered the swing vote.


Kennedy is right that the arguments presented by both sides during the oral arguments on December 9 seem reheated rather than freshly prepared.  The lawyers for plaintiff Sarah Fisher argue that the University’s use of affirmative action damaged her by denying her a place in the student body and that the affirmative action program does not meet the “Strict Scrutiny” test the Supreme Court laid out in the previous hearing of the case. The lawyers for Texas answer that she wouldn’t have been admitted even without the affirmative action program, that a lower court has upheld the constitutionality (by a 2-1 margin) of the holistic program, and that the program is necessary to achieve a critical mass of diversity down to the individual classroom.  One of Kennedy’s frustrations was that Texas had not done additional research or fact-finding to support that contention.


The case involves a program the University of Texas uses to supplement the state law that mandates that the University admit students who rank in the top 10% of their high school class.  The top 10% rule, which fills 75% of the class at UT-Austin, is not being challenged in Fisher. Lawyers for the University argue that the top 10% rule produces diversity, but only from lower socioeconomic groups who attend weaker high schools.


The University fills the final 25% using holistic admission. Most of the students admitted are white, but the University argues that it should be allowed to take race into account to supplement the diversity produced by the 10% rule.  When Fisher was last argued before the Supreme Court, it appeared that Texas was arguing that diversity required that some middle and upper class minority students with weaker academic records be admitted.


If the arguments are familiar, so are the broader questions.  Should universities have discretion to decide whom to admit based on their missions and strategic goals, or does the Court have a legitimate interest in how that is done?  How important is diversity, and is it a means to an educational end or an end in itself?  If racial preferences are wrong, aren’t they wrong even when used for the best of intentions?  If affirmative action is necessary, when will it no longer be necessary?


I am assuming that I will weigh on some of those issues in the future, and one of the projects I have in the back of my mind is a series of posts on the history of affirmative action in college admission, so here are several observations and questions that arise out of the oral arguments for Fisher, the sequel.


In a perfect world, there would be no need for race-conscious admissions practices, but we don’t live in a perfect world. Over the past couple of years it has been become clear in places like Ferguson and Baltimore that we haven’t made as much progress in overcoming our history with regard to race as I wish was the case.  It is hard for me to judge whether some of the recent campus protests with regard to diversity reflect real divisions on campuses or a new generation of students flexing their political muscle.  I am disappointed by the defense of affirmative action in Fisher, I’m not sure that race-conscious admission policies are ultimately defensible philosophically, and yet declaring affirmative action unconstitutional is probably not good public policy right now.


The biggest news story coming out of the Fisher oral arguments was a comment by Justice Antonin Scalia about African-American students being better off going to a “less-advanced” or “slower track” school where they would make better grades than at a place like UT-Austin.   That comment is insensitive at best, but it also provides a glimpse into a question that underlies some of the discussion about Fisher.  Does the value of a college education lie in the name on the diploma or in the experience one has in college?


Scalia’s assumption is that students admitted under affirmative action struggle in college, an issue that has come to be known as “mismatching.”  The evidence is far from conclusive, and which study you accept is probably influenced by what you want to believe.  The point of access is success.  Scalia is arguing, I think, that success is more important than access, and I would agree with him on that (which makes me very uncomfortable).  The student who goes to Texas-El Paso and excels is probably better off than he or she would be going to UT-Austin and struggling, but if a student can do the work and graduate it doesn’t matter.  A doctor who graduates at the bottom of a medical school class is still a doctor.  What is worrisome about the mismatching argument is that it is similar to the arguments made back in the 1950s for separate but equal schools.


Sarah Fisher’s argument also turns on the question of name on diploma vs. experience in college, but in a way that puts her in conflict with Scalia.  Fisher argues that she has been damaged because she wasn’t admitted to UT-Austin.  But has she been damaged because she graduated from LSU rather than UT-Austin?  She may have had to pay more in out-of-state tuition, but was she damaged by having to attend a different flagship public university?  Those of us who revel in irony can take great satisfaction in the fact that Fisher’s argument flies in the face of the assumption articulated by her greatest advocate on the Court.


Is Fisher v. Texas a challenge not only to affirmative action but also to holistic admission?  I don’t think so, but it does demonstrate that holistic admission can serve as a shroud making the admissions process mysterious.  It is hard to critique a decision that is holistic, and holistic admission could mean that each candidate is admitted for a different reason, whether it be transcript, test scores, leadership, ability to pay, or race.


There is a different issue that has thus far escaped scrutiny.  In the oral arguments, U.S. Solicitor General defends Texas by stating that “everybody competes against everybody else.”  That doesn’t square with my experience of how selective admission actually works.  At a time when classes are crafted or engineered to produce a class full of differences and meet an institution’s strategic goals, it is not the case that every applicant is competing for every place in the class. Students without a “hook”—most commonly athletic recruit, diversity, or legacy—are at a disadvantage, and 75-90% of applicants are competing for 10% of the places.


Will we see another sequel to Fisher?  It depends on the reviews to this one.  Stay tuned, and happy holidays.