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Between a Quota and a Hard Place

Publication Date: 
October 10, 2012
Emily Bazelon

Professor Richard Thompson Ford spoke with Slate's Emily Bazelon about Fisher v. University of Texas and how universities may use more "soft skills" versus objective ones when choosing applicants. 

As I listened to the Supreme Court wrestle with the lion that is affirmative action this morning, I kept thinking about the enduring view of the leaders of big business, small business, and the military. In 2003, the last time race in college admissions came before the court, Wall Street, Main Street, and retired military leaders said that diversity in college is crucial, for training people of different races and ethnic backgrounds and for exposing them to each other. This time, the same constituencies are back, calling diversity in school an economic imperative. Who, then, should get to decide how admissions play out in practice—the universities or the court?

It was Justice Stephen Breyer who framed the case of Abigail Fisher, a white applicant to the University of Texas-Austin who was denied admission four years ago, in terms of the job of the court versus the job of the schools. He pointed out that the court's 2003 ruling, in Grutter v. Bollinger, was built to last 25 years, in the words of its author, Justice Sandra Day O’Connor. "I know time flies," Breyer said to Fisher"s lawyer, Bert Rein. "But are you asking us to overrule" Grutter? And if so, why, given that the case "took so much time and thought and that so many people across the country rely on it?" Later, Breyer said he'd tried to figure out exactly how many universities have affirmative action plans like the one permitted in Grutter, which allowed race to be a factor in actions if schools don't resort to quotas. He’s not sure of the exact number, but it's a lot.


Verrilli also tries to argue, if I understood correctly, that race never necessarily determines whether UT admits a particular applicant. Scalia is incredulous. Kennedy says he doesn't understand the argument. Verrilli tries to explain that UT's consideration of race "functions more subtly." It doesn't quite work in the courtroom, but I think what he's after is the idea that when you're weighing any number of personal attributes, as many parts of a whole, it's actually not clear that one candidate's race, as opposed to the way in which his background helps shape his life experience or leadership potential, vaults him over another candidate. Stanford law professor Richard Thompson Ford makes the point that in this sense, universities are like employers who use qualitative measures—"soft skills"—rather than objective ones when choosing among candidates to fill an opening. How exactly do you know that race, per se, is playing a defining role?