Brennan Center Reacts to Arguments in Supreme Court Affirmative Action Case

NEW YORK–(ENEWSPF)–October 11, 2012.  The Supreme Court heard oral arguments today in one of the most important cases of the session, Fisher v. University of Texas UT, which many observers believe could end affirmative action as we know it. Inimai Chettiar and Mark Ladov of the Brennan Center for Justice are the authors of an amicus brief  in the case. 

For further reference, please read Ms. Chettiar piece in The Hill, “Fisher v. Texas is not about quotas— It’s about the economy.” She is also quoted in this piece in Forbes.

Following today’s oral arguments before the court today, Inimai Chettiar issued the statements below.

Overall reaction: 

“In their arguments before the Supreme Court today, attorneys for the University of Texas at Austin (UT Austin) and the Solicitor General eloquently explained how UT Austin uses race in a nuanced and individualized approach to student admissions. They clearly articulated why UT Austin’s admissions program is constitutional and should be upheld.

“As they questioned both sides, the Supreme Court Justices did not question the fundamental importance of diversity to our country as whole. In universities and other settings, diversity challenges students and spurs innovation, which is critical to maintaining our country’s competitive economic and intellectual advantage, as noted in amicus briefs filed by the Brennan Center, Fortune 100 companies, small businesses and others.

“Inclusive admissions policies also foster equal educational opportunity for all and ensure we have a well-educated population that can compete as part of a global workforce. As the Court considers the merits of this important case, we urge the Justices to continue to recognize the value of diversity to our universities and to our democracy as a whole. Diversity gives us our global competitive intellectual and economic edge.”

Reactions to Justices’ questions: 

“There was much discussion today of past precedent, the Grutter v. Bollinger case, in which the Court explained that schools may use inclusive admissions policies to foster a ‘critical mass’ of racial and ethnic diversity. This morning, the Justices — including Justice Kennedy, considered the key vote in this case – seemed concerned that ‘critical mass,’ is too amorphous to be a constitutional test. But UT Austin has appropriately refused to admit students according to a crude quota system, which Grutter and other past cases forbid. Instead, the university has shown that its inclusive admissions policy aims to foster diversity and improve the educational experience for all its students. The university has carefully analyzed its student body– including the experience of all students regardless of race—and concluded that there is still work to be done to achieve the benefits of diversity; this evidence meets the Court’s constitutional test.

“Some of the questions from the Justices hinted at a misunderstanding of UT Austin’s policy and of the realities of how race is experienced. For example, Justice Alito asked the attorney for UT Austin, ‘[I]f you have two applicants who are absolutely the same in every respect [except for their race and] one gets in; one doesn’t get in,’ would this violate the constitution? But UT Austin does not prefer any single student based on race; rather it looks at race alongside a host of factors to evaluate an applicant’s experience, skills, and strengths they can bring to student life. In other words, the university has not created a zero-sum game based on race. Also, no two students can be exactly the same except for race because race shapes us all.”

“Further, some students continue to face adversity because of their race, socioeconomic status, religion, and other factors that the university considers during admissions. Overcoming these obstacles often builds maturity and practical problem-solving abilities. The university is right to consider these qualities in its holistic admissions process and recognize they can contribute to an individual’s success in school and in professional life. It takes more than grades to succeed in college and beyond.”


Inimai Chettiar is the Director of the Justice Program at the Brennan Center for Justice at NYU School of Law and focuses on the intersection of race and economics. She has also written about the Fisher case in SCOTUSblog and writes frequently for the Huffington PostPolitico, and the American Constitution Society blog. 

Mark Ladov is Counsel in the Justice Program at the Brennan Center for Justice at NYU School of law, and focuses on improving economic opportunities for all, promoting equal access to the courts, and eradicating racial disparities in the justice system. His work has been featured on The NationNewsday, and the National Law Journal.