On Tuesday, September 25, SPEAK hosted its first panel discussion of the year. The topic was a timely one. Five panelists were invited to speak about Fisher v. Texas, the affirmative action case scheduled to be argued before the Supreme Court of the United States on October 10, 2012.
After opening remarks from Executive Director and panel moderator Nikki Baszynski and brief introductions from each of the panelists, Sharon Davies, Executive Director of the Kirwan Institute, laid the background for Fisher. She began with a 1978 case, Regents of the University of California v. Bakke, and traced the developments in college admissions to two 2003 cases, Gratz v. Bollinger and Grutter v. Bollinger. Those cases, the last in which the Supreme Court directly considered affirmative action in higher education, generally protected the right of universities to use race as a limited factor in a holistic approach to admissions. The Court rejected (in Gratz) the use of race in a quota-like system. Essentially, every individual needs to be considered as an individual and race cannot be the predominant factor in the decision.
Discussion next turned to Fisher itself.
Melinda Molina, a professor of law at Capital University, presented the arguments of the petitioner, Abigail Fisher, and respondent, the University of Texas. Fisher was denied admission to the University of Texas at Austin. The school’s admissions policy automatically admits the top 10% of every high school graduating class in the state of Texas to the University. Then, the remaining spots are given to individuals who undergo a holistic evaluation of their applications, where race is considered (Molina described it as “a factor of a factor of a factor” at this stage in the admissions process). Fisher argues that the holistic evaluation stage of the admissions process violates the Equal Protection Clause of the United States Constitution because there University has another way to achieve diversity - the top 10% method. The University of Texas argues that considering race as it fills the remaining spots of its incoming classes does not violate the Equal Protection Clause.
Gary Daniels, associate director of the ACLU of Ohio, spoke about his organization’s interest in the case. The ACLU filed an amicus brief in this case, addressing both the case itself and a brief filed by the Cato Institute. The brief, which can be found here, was designed to directly address and refute the arguments Cato Institute brief. In his remarks, Daniels emphasized the “watered down” nature of the University’s admissions policy. He expressed nervousness that, if this admissions policy fails before the Supreme Court, the ability of universities to consider race as a factor in admissions will be effectively eliminated.
Chris Walker, a professor of law at the Moritz College of Law, spoke about the possible outcomes of the case. Walker noted the idealogical makeup of the Court when Grutter was decided. The author of the Grutter decision, Justice Sandra Day O'Connor, has left the court and was replaced by Justice Samuel Alito, whose philosophy is substantially more conservative than O'Connor’s. He noted that there are numerous outcomes the case could have despite this change. Many of those outcomes seem dependent on the decision of Justice Anthony Kennedy, the Court’s likely swing vote. If Justice Kennedy, who dissented in Grutter, rules for the University of Texas and affirms the Fifth Circuit, Grutter would be upheld. It is also possible the Court, by ruling for Fisher, would significantly narrow the holding in Grutter, making the consideration of race in college admissions a practical impossibility. He also put forth a third option, believing that the Court could simply remand the case if it determines the Fifth Circuit misapplied the Grutter test.
Kathy Northern, the Dean of Admissions at the Moritz College of Law, spoke about the effects a Fisher holding limiting the ability of law schools to consider race in their admissions process would have on Moritz itself. She began by detailing Moritz’s current admissions policy, which considers academics first. Then, the college considers what an applicant would contribute to the student body, a standard that includes race and ethnicity along with a host of other factors. If Grutter were limited, that process would likely have to change. If Grutter is overruled, the college were no longer able to consider race at all the admissions process.
Nikki then opened up the discussion for questions. The audience made inquiries on a variety of topics, including the use of race in primary and secondary education admissions and placement, as well as the benefits of diversity. The panelists also spoke convincingly about why the issue of affirmative action is so important and evokes such a passionate response from Americans of all types.
In all, it was an informative, thought-provoking, and engaging discussion. If you didn’t make it for this event, there are plenty of opportunities to get involved coming up. Thanks to the SPEAK executive board for planning the event and to the members of the student body who attend. And special thanks to the panelists who joined us today, whose names are listed below:
Gary Daniels, Associate Director, ACLU
Sharon Davies, Executive Director, Kirwan Institute & Professor of Law, Moritz College of Law
Melinda Molina, Professor of Law, Capital University
Kathy Northern, Dean of Admissions & Professor of Law, Moritz College of Law
Christopher Walker, Professor of Law, Moritz College of Law
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