Fisher v. UT affirmative action case oral arguments heard

How can the ‘diversity’ of a university be evaluated?

By Leon Lin Oct. 16, 2012

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Last Wednesday, the U.S. Supreme Court heard the oral arguments from both sides of Fisher v. University of Texas, the affirmative action case for which MIT and 13 other universities, including the eight Ivy League schools, filed an amicus curiae brief defending the right of a university to consider the race of an applicant, among other factors, in its admissions process.

In Grutter v. Bollinger (2003), the Court upheld an admissions policy of the University of Michigan Law School, ruling that a diverse student body was a compelling interest that allowed the use of race in an admissions process so long as that use was “narrowly tailored” to obtaining the “critical mass” of minority groups on campus necessary for the kind of diversity that would enhance a school’s educational environment.

Diversity as an admissions goal

“Because we know that students learn quite a lot from each other, we want to bring to campus students who will add to the entire campus learning environment,” Stuart Schmill, Dean of Admissions, wrote in an email to The Tech. “This also means bringing together students from different backgrounds.”

Justice Samuel A. Alito noted in the oral argument that while the respondents argued for the benefit of diversity, they did not emphasize the goal of helping underprivileged students.

Evaluating a university’s diversity

“The educational benefits of diversity and the degree of diversity necessary to obtain those benefits defy easy calculation,” MIT’s joint brief to the Court admitted.

Bert Rein, the lawyer of petitioner Abigail Fisher, a white student denied admission to the University of Texas, argued that even under the framework of Grutter, the University of Texas had neither demonstrated the necessity of using race as a factor in admissions nor provided a well-defined goal to which its policies could be “narrowly tailored.” Rein suggested that the University of Texas might have gone too far.

Justice Sonia M. Sotomayor asked Rein when he thought the university had reached a sufficient number of blacks: “Pre-Grutter, when the State was indisputably still segregating, it was four percent. Today, under the post-Grutter system, it’s six percent. The two percent increase is enough for you, even though the state population is at 12 percent?”

“It’s not our burden to establish the number,” Rein said.

Several of the justices pressed the same points during the argument from Gregory G. Garre, who represented the University of Texas. “When will I know that you’ve reached a critical mass?” asked Chief Justice John G. Roberts.

The university did do a study in which they asked minority students about their classroom experiences. “In looking at the classrooms, your honor, what the university found was shocking isolation,” Garre said to Alito.

But Garre refused to provide a specific number for the critical mass, saying that the Court had in fact previously struck down numerical quotas, and that there was no one number that would serve all contexts.

“At what point and when do we stop deferring to the university’s judgment that race is still necessary? That’s the bottom line of this case,” Sotomayor pushed.

“Your honor, part of this is a judgment that the educators are going to make, but you would look to the same criteria,” Garre said. “You would look to the criteria that we looked at, the enrollment data, the feedback from the students. We also took into account diversity in the classroom. We took into account the racial climate on campus.” The standard to apply, according to Garre, is whether a school has produced “an environment where cross-racial understanding is promoted, an environment where the educational benefits of diversity are realized.”

MIT’s joint amici brief argued for continued autonomy of schools when it came to making these judgments. The brief predicted that excessively specific judicial requirements would severely disrupt the schools’ educational missions.

“Where is the end point?” asked Rein, who was given the last word. “‘We don’t have critical mass because we don’t know what it is and we refuse to say what it is.’ There is no judicial supervision, there is no strict scrutiny and there is no end point to what they are doing.”

Schmill feels that affirmative action at MIT has produced the desired effect. “I hear from students all the time how much they appreciate MIT’s diversity, and how much all our students feel their educational experience is enriched because of it.”