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Reaping the Whirlwind—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on nytimes.com on October 17, 2012.

Reaping the Whirlwind
By Linda Greenhouse ’78 MSL

On reading the transcript and listening to the audio of last week’s Supreme Court argument in the University of Texas affirmative action case, my primary reaction was one of embarrassment — for the court and also for Texas.

First the court. Of the four justices most intent on curbing or totally eradicating affirmative action — Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Samuel A. Alito Jr. and Clarence Thomas — the three who spoke (minus Justice Thomas, of course) failed to engage with the deep issues raised by Fisher v. University of Texas. Instead, they toyed with the case.

Chief Justice Roberts, after posing only one question to the lawyer representing Abigail Fisher, the rejected white applicant who filed a lawsuit claiming she was unconstitutionally discriminated against, flung 27 questions at the university’s lawyer, Gregory G. Garre, many seemingly designed to make the university’s commitment to assembling a diverse student body look silly. “Should someone who is one-quarter Hispanic check the Hispanic box or some different box?” the chief justice wanted to know. “What about one-eighth?” he persisted. “Would it violate the honor code for someone who is one-eighth Hispanic and says ‘I identify as Hispanic’ to check the Hispanic box?”

Justice Scalia piled on: “Did they require everybody to check a box or they have somebody figure out, oh, this person looks one thirty-second Hispanic and that’s enough?”

On it went, and it was impossible to avoid the conclusion that ridicule rather than a search for understanding was the name of the game. “How many people are there in the affirmative action department of the University of Texas?” Justice Scalia asked Mr. Garre. “Do you have any idea? There must be a lot of people to, you know, to monitor all these classes and do all of this assessment of race throughout the thing.” Justice Scalia mused that if the court invalidated the program, “there would be a large number of people out of a job,” a prospect that seemed to tickle his fancy.

It doesn’t take a genius to point out that it’s inherently problematic for the government to count people by race (“It is a sordid business, this divvying us up by race,” as Chief Justice Roberts famously expressed the thought during his first term on the court, dissenting from a 2006 Voting Rights Act decision that found that Texas had improperly diluted Latino voting strength). That’s why the Supreme Court has insisted that any affirmative action plan must meet the test of “strict scrutiny” — that is, that the plan must be “narrowly tailored” to serve a “compelling interest.”

But the fact is, as the justices obviously know, that the court has concluded that affirmative action in higher education admissions can clear that high bar — as it did nine years ago in Grutter v. Bollinger, the University of Michigan Law School decision. In other words, there was a context in which the Regents of the University of Texas, following upon the Michigan decision, chose to act, a history they sought to acknowledge, and a better future they hoped to achieve for their diverse state by supplementing the unsatisfactory and mechanical “top 10 percent” admissions plan with one that considers each applicant as an individual — with race as “only one modest factor among many others,” according to the university’s brief. It was this context that was almost entirely missing from the justices’ questions to the university’s lawyer. The questions were not so much hostile as trivializing.

By reference to context, I mean context outside the confines of this case — some recognition that although we may wish otherwise, there is still such a thing as race in America, still problems to solve and barriers to overcome. After all, nine years ago in the Michigan decision, from which Justices Scalia and Thomas dissented (Chief Justice Roberts and Justice Alito were not on the court), the court said it expected that affirmative action would need to continue for another quarter century. To quote Justice Stephen G. Breyer’s acerbic comment from the bench: “I know that time flies.” (Or, as Justice Scalia said with equal asperity to the university’s lawyer, “Sixteen more years and you’re going to call it all off.”)

By coincidence, on the day the Supreme Court was hearing the Texas case, three federal judges sitting a mile or so down Constitution Avenue issued an opinion in another racially freighted case, a challenge by the federal government to South Carolina’s new voter ID law. The judges, convened as a special Federal District Court under the Voting Rights Act, concluded that South Carolina’s law, at least as it exists on paper, will not have a racially discriminatory effect. But they were sufficiently uncertain about the state’s ability to live up to its promise of ready availability of photo identification that they barred the law from taking effect for the 2012 election.

“Racial insensitivity, racial bias, and indeed outright racism are still problems throughout the United States as of 2012,” the opinion said. “We see that reality on an all-too-frequent basis. The long march for equality for African-Americans is not finished.” Not only the opinion’s language but its authorship was striking: Judge Brett M. Kavanaugh of the United States Court of Appeals for the District of Columbia Circuit, one of the federal judiciary’s most high-profile conservatives. (At age 47, Judge Kavanaugh is a likely future Republican Supreme Court nominee. On Tuesday of this week, he wrote an important opinion for the D.C. Circuit overturning the military commission conviction of a prominent one-time detainee at Guantánamo Bay, Salim Ahmed Hamdan.) Would it have been too much to expect something similar from Chief Justice Roberts and his allies on the Supreme Court bench, some acknowledgment in passing that the Texas Regents didn’t pluck the notion of affirmative action out of thin air and were trying to do what they believed was not only appropriate but, under the Supreme Court’s precedents, perfectly legal?

The notion of “critical mass” figured prominently in the argument, the university’s point being that it needs to be able to take measures to address the “racial isolation” experienced by many of the minority students scattered by ones or twos among the small classes that predominate at the Austin campus. This would not seem to be a difficult concept to grasp, yet Chief Justice Roberts, Justice Scalia and Justice Alito appeared baffled by it.

Mr. Garre noted that in 2002, when the university was relying simply on admitting the top 10 percent of students in every Texas high school, only 3 percent of the student body was African-American. (It is now about twice that.) Well, the chief justice wanted to know, if that wasn’t a critical mass, what was? His various questions included these: “When will we know that you’ve reached a critical mass?” “What is the logical end point?” “At what level will it satisfy the critical mass?”

Mr. Garre, an experienced Supreme Court advocate who served as President George W. Bush’s last solicitor general, was too canny to fall into the trap. He knew that the minute he offered a number, the justices would pounce and call it an illegitimate quota. Back in the Michigan case, in which the concept of critical mass also played a role, the justices seemed to get it. At one point Mr. Garre, referring to the Michigan decision, said to Justice Scalia in evident frustration: “Well, your honor, Grutter is this court’s precedent. We’re guided by it here. At least the advocates are.”

(You may have noticed, perhaps with surprise, that I haven’t mentioned Justice Anthony M. Kennedy. He asked very few questions, and actually seemed to be working to figure the case out. Of course, that may just be a relative question of style. In 25 years on the court, Justice Kennedy has never voted to uphold a government program that counts people by race. The question in this case isn’t whether Justice Kennedy will vote to limit the Texas plan, but how far he — and therefore possibly the court — will go.)

At the beginning of this column, I said I was embarrassed not only for the court, but for Texas as well. Here’s why. The university freely concedes, as it must, that the “top 10 percent” plan provides its modicum of diversity only because the high schools in Texas are so segregated. A high school in south Texas sends Latino students to U.T. just as an inner-city high school in Dallas sends black students. That much is obvious — in fact, it was part of the original understanding when the state came up with this approach in the mid-1990s after a federal appeals court invalidated a more typical affirmative action plan.

What is perhaps less obvious is something the university concedes only obliquely: that the top 10 percent of students graduating from under-funded and under-performing high schools are often ill-equipped to get the most from — or offer the most to — a major research university. Further, the 10 percent plan deprives the university of better-prepared students of all backgrounds who, like Abigail Fisher, just miss the cut-off at better high schools, students that Texas would very much like to attract and keep.

In its brief, the university talks about its supplement to the 10 percent plan, under which a quarter of the entering class is selected via “holistic” consideration, as serving the goal of “increasing diversity within diversity.” Solicitor General Donald B. Verrilli Jr., arguing for the federal government as a friend-of-the-court for Texas, explained that the university “will look for individuals who will play against racial stereotypes just by what they bring: the African-American fencer, the Hispanic who has mastered classical Greek.” The problem, he said, was that the university “can’t control” the diversity produced by the 10 percent plan.

That is certainly an accurate description of the painful reality that Texas faces as the result of huge disparities in educational opportunity brought about by huge disparities in wealth among its hundreds of school districts. Texas is hardly alone in this: financing local schools through the local tax base is, after all, the American way.

But there is a particular historical irony to the fact that it is Texas that has to admit to the world that students in the top 10 percent of numerous public high schools aren’t good enough for the state’s flagship university. Next year will be the 40th anniversary of a hugely important but little-remembered Supreme Court decision, San Antonio Independent School District v. Rodriguez. The case was a challenge, brought on behalf of Mexican-American children in an underfinanced San Antonio school district, to the state’s system of relying largely on local wealth to pay for local schools.

The San Antonio litigation was part of a movement aimed at persuading the Supreme Court to recognize a constitutional basis for economic rights. The notion didn’t seem far-fetched in the closing years of the Warren Court era. But by the time the case reached the Supreme Court, that era was over, and President Richard Nixon had made four Supreme Court appointments in rapid succession. Texas defended its system and prevailed, with the support of all four Nixon appointees. The vote to reject what the majority properly recognized as a profound challenge to the status quo was 5 to 4.

How different public education might be today had the San Antonio case gone the other way is, of course, impossible to say. But to my mind, at least, that was the question that hung in the air as the state struggled to explain why the top-10-percent plan fell short.

And thinking about the legacy of the San Antonio decision brought to mind the words that William H. Rehnquist, as an associate justice, wrote in dissent from a decision upholding an affirmative action plan in the steel industry. The future chief justice argued passionately that by upholding the plan, the court was violating the letter and spirit of the 1964 Civil Rights Act. “The court has sown the wind,” he wrote. “Later courts will face the impossible task of reaping the whirlwind.” The case was United Steelworkers of America v. Weber. The year was 1979. The next year, a young law school graduate arrived in the Rehnquist chambers as a law clerk. His name was John Roberts.