Down the affirmative action rabbit hole at the Supreme Court

From the justices' questions to the U. of Texas's lawyer (Mr. Garre) defending the University of Texas's racial/ethnic preference systems. It gets pretty comic.

(By the way, a couple of days ago the humor/satire site Fark linked to my annotation of a Wall Street Journal article on the the latest kindergarten contortions in New York City. It got 200+ comments on Fark, which get progressively better as more readers start to wrap their heads around it. But, if Fark is looking for humor in the news, they should check out this cross-examination of an affirmative action defender by the Supreme Court's Murderer's Row:]

CHIEF JUSTICE ROBERTS: Counsel, before -- I 

need to figure out exactly what these numbers mean. 

Should someone who is one-quarter Hispanic check the 

Hispanic box or some different box?

 MR. GARRE: Your Honor, there is a 

multiracial box. Students check boxes based on their 

own determination. This is true under the Common 

Application -­

CHIEF JUSTICE ROBERTS: Well, I suppose a 

person who is one-quarter percent Hispanic, his own 

determination, would be I'm one-quarter percent 

Hispanic.

 MR. GARRE: Then they would check that box, 

Your Honor, as is true -­

CHIEF JUSTICE ROBERTS: They would check 

that box. What about one-eighth?

[How about one-thirtysecond American Indian?]

 MR. GARRE: Your Honor, that was -- they 

would make that self-determination, Your Honor. If

anyone, in any part of the application, violated some 

honor code then that could come out -­

CHIEF JUSTICE ROBERTS: Would it violate the 

honor code for someone who is one-eighth Hispanic and 

says, I identify as Hispanic, to check the Hispanic box?

[Honor code? We don't need no steeenking honor code!]

 MR. GARRE: I don't think -- I don't think 

it would, Your Honor. I don't think that that issue 

would be any different than the plan upheld in Grutter 

or the Harvard plan or in Bakke.

 CHIEF JUSTICE ROBERTS: You don't check in 

any way the racial identification?

 MR. GARRE: We do not, Your Honor, and no 

college in America, the Ivy Leagues, the Little Ivy 

Leagues, that I'm aware of.

 CHIEF JUSTICE ROBERTS: So how do you know 

you have 15 percent African American -- Hispanic or 

15 percent minority?

 MR. GARRE: Your Honor, the same way that 

that determination is made in any other situation I'm 

aware of where race is taken into account.

 CHIEF JUSTICE ROBERTS: You say the same 

way. What is that way?

 MR. GARRE: The persons self-identify on 

that form.

[The issue, obviously, is that in a country where the President is half black and chooses to identify on his 2010 Census form as only black, there are no downsides to identifying dubiously as belonging to a Designated Victim Group, other than the individual's own conscience and sense of honor. We should not underestimate the sense of honor among white people, but it's a little much to assume that it will remain wholly intact under long-term assault.

By the way, for the benefit of the Justices, here is the Pew Hispanic Center's intentionally hilarious guide to Who Is Hispanic?]

 JUSTICE SCALIA: Do they have to 

self-identify?

 MR. GARRE: They do not, Your Honor. Every 

year people do not and many of those applicants are 

admitted.

 JUSTICE SCALIA: And how do they decide? 

You know, it's -- they want not just a critical mass in 

the school at large, but class by class? How do they 

figure out that particular classes don't have enough? 

What, somebody walks in the room and looks them over to 

see who looks -- who looks Asian, who looks black, who 

looks Hispanic? Is that how it's done?

 MR. GARRE: No, Your Honor, and let me try 

to be clear on this. The university has never asserted 

a compelling interest in any specific diversity in every 

single classroom. It has simply looked to classroom 

diversity as one dimension of student body diversity.

 JUSTICE SCALIA: I don't know what you are 

talking about. I mean it is either a factor that is 

validly in this case or it isn't. Do they look to 

individual classroom diversity or not? And if so, how 

do they decide when classes are diverse?

 MR. GARRE: This Court in Grutter, Your 

Honor, and maybe the most important thing that was said 

during the first 30 minutes was, when given an 

opportunity to challenge Grutter, I understood my friend 

not to ask this Court to overrule it. This Court in 

Grutter recognized the obvious fact that the classroom 

is one of the most important environments where the 

educational benefits of diversity are realized, and so 

the University of Texas, in determining whether or not 

it had reached a critical mass, looked to the classroom 

along with -­

JUSTICE SCALIA: Fine. I'm asking how. How 

did they look to the classroom?

 MR. GARRE: Well, Your Honor -­

JUSTICE SCALIA: Did they require everybody 

to check a box or they have somebody figure out, oh, 

this person looks 1/32nd Hispanic and that's enough?

 MR. GARRE: They did a study, Your Honor, 

that took into account the same considerations that they 

did in discussing the enrollment categories -­

JUSTICE SCALIA: What kind of a study? What 

kind of a study?

 MR. GARRE: Well, Your Honor, it's in the 

Supplemental Joint Appendix.

 JUSTICE SCALIA: Yes, it doesn't explain to 

me how they go about, classroom by classroom, deciding 

how many minorities there are.

 MR. GARRE: Your Honor, there are student 

lists in each classroom. The student lists --

CHIEF JUSTICE ROBERTS: There are student 

lists in each classroom that have race identified with 

the students.

 MR. GARRE: No, no, Your Honor. Of course, 

each classroom, the university knows which students are 

taking its classes and one can then, if you want to 

gauge diversity in the classrooms, go back -­

CHIEF JUSTICE ROBERTS: Oh, you go back to 

what they checked on the form.

application form in deciding whether Economics 201 has a 

sufficient number of African Americans or Hispanics?

 MR. GARRE: That is information that is 

available to the university, Your Honor, the race of 

students if they've checked it on the application. But 

I do want to be clear on this classroom diversity study. 

This was only one of many information points that the 

university looked to.

 JUSTICE ALITO: Well, on the classroom 

diversity, how does the non-Top 10 Percent part of the 

plan further classroom diversity? My understanding is 

that the university had over 5,000 classes that 

qualified as small and the total number of African 

Americans and Hispanics who were admitted under the part 

of the plan that is challenged was just a little over 

200.  So how does that -- how does that -- how can that 

possibly do more than a tiny, tiny amount to increase 

classroom diversity?

 MR. GARRE: Well, Your Honor, first I think 

that 200 number is erroneous. There have been many more 

minority candidates -­

JUSTICE ALITO: Per class?

 MR. GARRE: No, not -- not on a per-class 

basis.

 JUSTICE ALITO: Individuals in class.

 MR. GARRE: I think in looking at the 

classrooms, Your Honor, what the university found was 

shocking isolation.

[I am shocked, SHOCKED.]

 JUSTICE ALITO: How many -- how many non-Top 

10 Percent members of the two minorities at issue here 

are admitted in each class?

 MR. GARRE: Your Honor, we didn't look 

specifically at that determination. What we did -- in 

other words, to try to find whether there were holistic 

admits or percentage admits, we did conclude in 2004 -­

and again this was before -- we did the classroom study 

before the plan at issue was adopted and at that time 

there were no holistic admits taking race into account. 

And what we concluded was that we simply -- if you 

looked at African Americans, for example, in 90 percent 

of the classes of the most common participatory size -­

JUSTICE ALITO: I really don't understand 

your answer. You know the total number of, let's say, 

African Americans in an entering class, right? Yes or 

no?

 MR. GARRE: Yes, Your Honor.

 JUSTICE ALITO: And you know the total 

number who were admitted under the Top 10 Percent Plan?

 MR. GARRE: We do, Your Honor. But again at 

the time -­

JUSTICE ALITO: If you subtract A from B 

you'll get C, right?

 MR. GARRE: Your Honor, at the time -­

JUSTICE ALITO: And what is the value of C 

per class?

 MR. GARRE: Your Honor, I don't know the 

answer to that question, and let me try to explain why 

the university didn't look specifically to that. 

Because at the time that the classroom diversity study 

was conducted, it was before the holistic admissions 

process at issue here was adopted in 2003-2004. And so 

that determination wouldn't have been as important as 

just finding out are African Americans or Hispanics, 

underrepresented minorities, present at the university 

in such numbers that we are not experiencing racial 

isolation in the classroom.

 CHIEF JUSTICE ROBERTS: What is that number? 

What is the critical mass of African Americans and 

Hispanics at the university that you are working toward?

 MR. GARRE: Your Honor, we don't have one. 

And this Court in Grutter -­

[What's going on here is that the 1978 Bakke decision more or less legalized quotas as long as they aren't referred to as quotas. Since then, quota supporters have started to use the term "critical mass" to justify quotas. Now, "critical mass" sounds very scientific and quantitative (if you have a critical mass of plutonium of a certain amount, then BOOM), but if the quota supporters ever let themselves be pinned down to putting a number to it, then it sounds a lot like a quota.

The University of Texas at Austin has 38,400 undergraduates and about 15,000 are nonwhite. A couple of thousand are black. So, keep that in mind in the subsequent gang-ups.]

CHIEF JUSTICE ROBERTS: So how are we 

supposed to tell whether this plan is narrowly tailored 

to that goal?

 MR. GARRE: To look to the same criteria of 

this Court in Grutter. This Court in Grutter 

specifically rejected the notion that you could come up 

with a fixed percentage. Now -­

JUSTICE ALITO: Does critical mass vary from 

group to group? Does it vary from State to State?

 MR. GARRE: It certainly is contextual. I 

think it could vary, Your Honor. I think -- let me 

first say that my friends have, throughout this 

litigation, not in this Court, asserted 20 percent as a 

critical mass and that's lumping together different 

minority groups.

 JUSTICE ALITO: But could you answer my

question? What does the University of Texas -- the 

University of Texas think about those questions? Is the 

critical mass for the University of Texas dependent on 

the breakdown of the population of Texas?

 MR. GARRE: No, it's not at all.

 JUSTICE ALITO: It's not.

 MR. GARRE: It's not at all. It's looking 

to the educational benefits of diversity on campus, and 

I think we actually agree on what that means and what 

Grutter said it meant in terms of -­

JUSTICE GINSBURG: Mr. Garre, could you 

explain -- I think you were trying to before -- what 

seems to me the critical question in this case: Why 

didn't the 10 percent solution suffice? There were a 

substantial number of minority members admitted as a 

result of the 10 percent solution. Why wasn't that 

enough to achieve diversity?

 MR. GARRE: Let me make a couple of points, 

Your Honor. First, if you just looked at the numbers -­

we don't think it's the numbers, but if you looked at 

the numbers after 7 years, racial diversity among these 

groups at the University of Texas had remained stagnant 

or worse. 2002, African American enrollment had 

actually dropped to 3 percent.

[That's about a thousand blacks among undergraduates.]

That's one part of it.

 The other part of it is if you look at the 

admissions under the top 10 percent plan, taking the top 

10 percent of a racially identifiable high school may 

get you diversity that looks okay on paper, but it 

doesn't guarantee you diversity that produces 

educational benefits on campus. And that's one of the 

considerations that the university took into account as 

well.

 JUSTICE SCALIA: I don't understand that. 

Why? Why doesn't it?

 MR. GARRE: Because, Your Honor, as is true 

for any group, and the Harvard plan that this Court 

approved in Bakke specifically recognized this, you 

would want representatives and different viewpoints from 

individuals within the same -- the same racial group, 

just as you would from individuals outside of that.

 JUSTICE SCALIA: What kind of viewpoints? I 

mean, are they political viewpoints?

 MR. GARRE: Anyone's experiences, where they 

grew up, the situations that they -- that they 

experience in their lives are going to affect their 

viewpoints.

 JUSTICE SCALIA: But this has nothing to do 

with racial diversity. I mean, you're talking about 

something else.

 MR. GARRE: Your Honor, I think it direct

impacts the educational benefits of diversity in this 

sense, that the minority candidate who has shown that -­

that he or she has succeeded in an integrated 

environment, has shown leadership, community service, 

the other factors that we looked at in holistic review, 

is precisely the kind of candidate that's going to 

come -- come on campus, help to break down racial 

barriers, work across racial lines, dispel -­

stereotypes -­

JUSTICE SCALIA: Also, the kind that is 

likely to be included within the 10 percent rule.

 And, incidentally, when was the 10 percent 

rule adopted?

 MR. GARRE: 1998, Your Honor.

 But with respect to your factual point, 

that's absolutely wrong, Your Honor. If you look at the 

admissions data that we cite on page 34 of our brief, it 

shows the breakdown of applicants under the holistic 

plan and the percentage plan. And I don't think it's 

been seriously disputed in this case to this point that, 

although the percentage plan certainly helps with 

minority admissions, by and large, the -- the minorities 

who are admitted tend to come from segregated, 

racially-identifiable schools.

 JUSTICE ALITO: Well, I thought that the 

whole purpose of affirmative action was to help students 

who come from underprivileged backgrounds, but you make 

a very different argument that I don't think I've ever 

seen before.

 The top 10 percent plan admits lots of 

African Americans -- lots of Hispanics and a fair number 

of African Americans. But you say, well, it's -- it's 

faulty, because it doesn't admit enough African 

Americans and Hispanics who come from privileged 

backgrounds. And you specifically have the example of 

the child of successful professionals in Dallas.

 Now, that's your argument? If you have -­

you have an applicant whose parents are -- let's say 

they're -- one of them is a partner in your law firm in 

Texas, another one is a part -- is another corporate 

lawyer. They have income that puts them in the top 

1 percent of earners in the country, and they have -­

parents both have graduate degrees. They deserve a 

leg-up against, let's say, an Asian or a white applicant 

whose parents are absolutely average in terms of 

education and income?

 MR. GARRE: No, Your Honor. And let me -­

let me answer the question.

 First of all, the example comes almost word 

for word from the Harvard plan that this Court approved 

in Grutter and that Justice Powell held out in Bakke.

 JUSTICE ALITO: Well, how can the answer to 

that question be no, because being an African American 

or being a Hispanic is a plus factor.

 MR. GARRE: Because, Your Honor, our point 

is, is that we want minorities from different 

backgrounds. We go out of our way to recruit minorities 

from disadvantaged backgrounds.

 JUSTICE KENNEDY: So what you're saying is 

that what counts is race above all.

 MR. GARRE: No, Your Honor, what counts is 

different experiences -­

JUSTICE KENNEDY: Well, that's the 

necessary -- that's the necessary response to 

Justice Alito's question.

 MR. GARRE: Well, Your Honor, what we want 

is different experiences that are going to -- that are 

going to come on campus -­

JUSTICE KENNEDY: You want underprivileged 

of a certain race and privileged of a certain race. So 

that's race.

 MR. GARRE: No, Your Honors, it's -- it's 

not race. It's just the opposite.

 I mean, in the LUAC decision, for example, 

this Court said that failing to take into account 

differences among members of the same race does a 

disservice -­

JUSTICE KENNEDY: But the reason you're 

reaching for the privileged is so that members of that 

race who are privileged can be representative, and 

that's race. I just -­

MR. GARRE: It's -- it's members of the same 

racial group, Your Honor, bringing different 

experiences. And to say that -- if you took any racial 

group, if you had an admissions process that only tended 

to admit from a -- people from a particular background 

or perspective, you would want people from different 

perspectives.

 CHIEF JUSTICE ROBERTS: Counsel -­

MR. GARRE: And that's -- that's the 

interests that we're discussing here. It's the 

interests that the Harvard plan specifically adopts 

and lays out -­

CHIEF JUSTICE ROBERTS: I understand my job 

under our precedents to determine if your use of race is 

narrowly tailored to a compelling interest.

 The compelling interest you identify is 

attaining a critical mass of minority students at the 

University of Texas, but you won't tell me what the 

critical mass is. How am I supposed to do the job that 

our precedents say I should do?

 MR. GARRE: Your Honor, what -- what this 

Court's precedents say is a critical mass is an 

environment in which students of underrepresented -­

CHIEF JUSTICE ROBERTS: I know what you say, 

but when will we know that you've reached a critical 

mass?

 MR. GARRE: Well -­

CHIEF JUSTICE ROBERTS: Grutter said there 

has to be a logical end point to your use of race. What 

is the logical end point? When will I know that you've 

reached a critical mass?

[What the University of Texas bigshots would say if they could be completely honest, not only with the Supreme Court but inside their own minds is: "Look, we know we've got a good thing going here with all sorts of smart white and Asian students wanting to come here, and we don't intend to screw it all up the way CCNY did in 1969 by letting in so many Hispanics and blacks that we kill the goose that lays the golden eggs. Trust us to be cynically self-serving."]

 MR. GARRE: Your Honor, this question, of 

course, implicates Grutter itself. And, again, I 

understood my friend not to challenge that. They 

haven't challenged that diversity is a compelling 

interest at all.

 What -- what we look to, and we think that 

courts can review this determination, one, we look to 

feedback directly from students about racial isolation 

that they experience. Do they feel like spokespersons 

for their race.

[This "does not feel like spokesperson for his or her race" test of when a critical mass is big enough is a very weird one since racial preferences are defended by people who are professional spokespeople for their race. The Xochitl Hinojosa-type ethnic spokespersons tend to be ethnic warriors for increasing the number of people of their supposed group in the country so they can make even more money as spokesmodels.]

 CHIEF JUSTICE ROBERTS: So, what, you 

conduct a survey and ask students if they feel racially 

isolated?

[All teenagers feel isolated. I remember watching a Britney Spears video back about 12 years ago where she plays a high school girl who feels so lonely. She really was getting into it.]

MR. GARRE: That's one of the things we 

looked at.

 CHIEF JUSTICE ROBERTS: And that's the basis 

for our Constitutional determination?

 MR. GARRE: Your Honor, that's one of the 

things that we looked at.

 CHIEF JUSTICE ROBERTS: Okay. What are the 

others?

 MR. GARRE: Another is that we did look to 

enrollment data, which showed, for example, among 

African Americans, that African American enrollment at 

the University of Texas dropped to 3 percent in 2002 

under the percentage plan.

 CHIEF JUSTICE ROBERTS: At what level will 

it satisfy the critical mass?

 MR. GARRE: Well, I think we all agree that 

3 percent is not a critical mass. It's well beyond 

that.

[Three percent is about 1,000 black undergraduates on the UT Austin campus.]

 CHIEF JUSTICE ROBERTS: Yes, but at what 

level will it satisfy the requirement of critical mass?

 MR. GARRE: When we have an environment in 

which African Americans do not -­

CHIEF JUSTICE ROBERTS: When -- how am I 

supposed to decide whether you have an environment 

within particular minorities who don't feel isolated?

MR. GARRE: Your Honor, part of this is a -­

is a judgment that the admin -- the educators are going 

to make, but you would look to the same criteria -­

["You'll decide, Mr. Chief Justice, when self-appointed minority spokespersons damn well tell you to decide that minority students no longer feel like minority spokespersons, and not a minute before!]

CHIEF JUSTICE ROBERTS: So, I see -- when 

you tell me, that's good enough.

[Roberts gets the joke.]

 MR. GARRE: No, Your Honor, not at all. 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.

 JUSTICE ALITO: But would 3 percent be 

enough in New Mexico, your bordering state, where the 

African American population is around 2 percent?

 MR. GARRE: Your Honor, I don't think it 

would.

[Perhaps all the black college students in New Mexico should be bussed to Texas in order to benefit from Critical Mass. Hey, it worked in Boston!]

I mean, our concept to critical mass isn't tied 

to demographic. It's undisputed in this case that we 

are not pursuing any demographic goal. That's on page 

138 of the Joint Appendix.

 All of -- I think many key facts are 

undisputed here. It's undisputed that race is only a 

modest factor. It's undisputed that we're taking race 

into account only to consider individuals in their 

totality.

 JUSTICE SOTOMAYOR: Mr. Garre, I think that 

the issue that my colleagues are asking is, 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. And you're saying, and I 

think rightly because of our cases, that you can't set a 

quota, because that's what our cases say you can't do.

 So if we're not going to set a quota, what 

do you think is the standard we apply to make a 

judgment?

 MR. GARRE: I think the standard you would 

apply is the one set forth in Grutter, and it comes from 

Justice Powell's opinion in Bakke, that you would look 

to whether or not the University reached an environment 

in which members of underrepresented minorities, African 

Americans and Hispanics, do not feel like spokespersons 

for their race, members -- an environment where 

cross-racial understanding is promoted, an environment 

where the benefit -- educational benefits of diversity 

are realized.

 And the reason why the University of Texas 

concluded that that environment was not met here, it 

laid out in several different information points that 

this Court can review -­

JUSTICE SCALIA: But that holds for only -­

only another what, 16 years, right? Sixteen more years, 

and you're going to call it all off. ...

 JUSTICE ALITO: Well, in terms of diversity, 

how do you justify lumping together all Asian Americans? 

Do you think -- do you have a critical mass of Filipino 

Americans? Cambodian Americans -­

MR. GARRE: Your Honor -­

JUSTICE ALITO: -- Cambodian Americans?

[This is hardly just theoretical. Lots of Asian spokespersons argue for more finely dividing the Asian category so that Cambodians and Hmongs and the like can be considered Underrepresented Minorities. Indeed, Pacific Islanders used to be lumped with Asians, but in the 1990s they got the Clinton Administration to give them a separate racial category so they can benefit from quotas.]

 MR. GARRE: -- the common form that's used 

has Asian American, but also, next to that, has a form 

that says country of origin where that can be spelled 

out.

 JUSTICE ALITO: But do you have a critical 

mass as to all the subgroups that fall within this 

enormous group of Asian Americans?

 MR. GARRE: Your Honor, we've looked to 

whether or not we have a critical mass of 

underrepresented minorities, which is precisely what the 

Grutter decision asks us to do.

 I think -- if I can make a quick point on 

jurisdiction -­

JUSTICE KENNEDY: If I could, before we get 

to that.

 MR. GARRE: I'm sorry.

 JUSTICE KENNEDY: Suppose we -- that you, in 

your experience identify a numerical category a 

numerical standard, a numerical designation for critical 

mass: It's X percent. During the course of the 

admissions process, can the admissions officers check to 

see how close they are coming to this numerical -­

MR. GARRE: No. No, Your Honor, and we 

don't. On page 389 -­

JUSTICE KENNEDY: You -- you cannot do that?

[Mr. Garre must be really sweating now. He needs Kennedy's vote and that's not at all a helpful question that Kennedy just asked.]

 MR. GARRE: We -- we wouldn't be monitoring 

the class. I think one of the problems -­

JUSTICE KENNEDY: But isn't that what 

happened in Grutter; it allowed that.

 MR. GARRE: It did, Your Honor. It was one 

of the things -­

JUSTICE KENNEDY: So are you saying that 

Grutter is incorrect?

 MR. GARRE: No, Your Honor. It was one of 

the things that you pointed out in your dissent. What 

I'm saying is we don't have that problem, because -­

JUSTICE KENNEDY: I'm -- I'm asking whether 

or not you could do that. And if -­

MR. GARRE: I don't think so, because the 

Grutter majority didn't understand it to be monitoring 

for the purposes of reaching a specific demographic.

 CHIEF JUSTICE ROBERTS: They don't -- they 

don't monitor, but race is the only one of your holistic 

factors that appears on the cover of every application, 

right?

 MR. GARRE: Well, all the holistic factors 

are taking into account on the application, and they're 

listed at various points on the application.

 CHIEF JUSTICE ROBERTS: I'm sorry. The 

question was whether race is the only one of your 

holistic factors that appears on the cover of every 

application.

 MR. GARRE: That -- that is true on the 

cover of the application.