Makeup of the court does not offer affirmative action supporters cause for optimism
By Kris Olson
The Daily Record Newswire
BOSTON — Massachusetts attorneys authored three amicus briefs in the closely watched affirmative action case Fisher v. University of Texas, argued for the second time before the U.S. Supreme Court on Dec. 9.
But while those briefs offer full-throated support for considering race in a limited, non-quota-based way in college admissions, optimism is not high that their arguments will hold sway with the court as currently constituted.
The seeds of the case were sown when petitioner Abigail Fisher failed to place within the top 10 percent of her graduating high school class. If she had, she would have gained automatic admission to the University of Texas under a program the school instituted after its previous policy, which accounted for race, was struck down by the 5th U.S. Circuit Court of Appeals in 1996.
The “top 10 percent” program fills approximately 75 percent of the seats in each incoming class and, according to Fisher’s brief, succeeded in bringing to the school “‘real diversity’ without classifying applicants in a way the ‘Constitution abhors.’”
UT had been filling the remaining seats in its incoming class in a race-neutral way until the Supreme Court’s 2003 decision in Grutter v. Bollinger, which gave the school license to reintroduce racial preferences as part of its admissions criteria, an opportunity UT “leapt at” despite its “dubious” utility, according to Fisher.
“Since then, UT’s fundamental problem has been its inability to justify that unfortunate decision,” Fisher argues, adding that the bar — surviving “strict scrutiny” by demonstrating the absence of race-neutral alternatives and that the policy is narrowly tailored — is high.
Boston attorney Matthew T. Henshon traveled to Washington, D.C., to hear the oral arguments in Fisher II firsthand, having authored a brief on behalf of the National Association of Basketball Coaches. Henshon himself was a starter on Princeton University’s basketball team, whose David-and-Goliath battle with Georgetown in 1989 became the subject of an ESPN documentary.
In tackling his brief-writing assignment, Henshon said he consulted a book by Supreme Court Justice Antonin Scalia that stressed the importance of the names on the cover page.
On that front, Henshon had some powerful allies, at least in basketball circles: 11 Hall of Fame inductees, representing dozens of other men’s and women’s coaches who also lent their names to the effort.
But more than their names, Henshon hopes their stories, instructive of the impact of diversity on black and white students alike, will move the justices.
“The idea was to take a step back [and say], ‘If [affirmative action in admissions] goes away, here’s what’s going to be lost,’” Henshon said.
The lead amici include four African-American coaches who overcame race-related obstacles to blaze trails for others. One is Georgetown coach John R. Thompson Jr., whose mother was not allowed to teach in the Washington, D.C., public school system despite having her teaching certificate.
Henshon said the baritone of Thompson was a voice he “heard a lot” as he composed the brief, having met the imposing 6-foot, 10-inch legend a time or two while playing on the same team at Princeton as Thompson’s son.
Noting that the Grutter decision had highlighted “broadening perspectives” as a permissible motivation for seeking a “critical mass” of minorities on campus, Henshon’s brief highlights examples in which athletics have done just that.
There was the Mississippi State basketball team that dodged an injunction to play in the 1963 NCAA Tournament, after missing out on that opportunity the year before due to a state rule preventing Mississippi public colleges from taking the court against integrated teams. That led to a chance interaction between the white players and a group of black girls at the team hotel. One of the players recalled one of the girls saying to him, “Well, you don’t look like a monster to me. You look normal.”
That interaction, the brief states, “demonstrates what the Grutter court was referencing: the interplay between people with different backgrounds that can increase perspectives.”
Another prominent example cited is the 1966 NCAA championship game, in which an all-white Kentucky team was beaten by a Texas Western team with five African-American starters, earning them a new level of respect.
Future NBA superstars and rivals Earvin “Magic” Johnson and Larry Bird, too, “both needed to interact and rely on teammates from diverse backgrounds,” the brief notes.
And those are just the conspicuous examples, the brief notes. More often, the educational benefits “occur slowly, hidden away in classrooms or dining halls.”
While some may think “it’s just sports,” Henshon writes in the brief that college basketball has already arrived at the destination to which society is headed: a “majority-minority” environment.
Thus, it can already demonstrate the impact of individuals for whom basketball may have opened the doors to college, such as Ed Hightower, a college basketball referee turned school superintendent, and Peter Roby, former Harvard coach and current Northeastern University athletic director. Now, these men are role models, and not just for those of the same race, the brief notes.
Athletics also fosters “good citizenship,” the brief states, pointing to, among others, former Sen. Bill Bradley, who found his time in a “black world,” the NBA, “one of the most enlightening experiences” of his life and good preparation for his work in the U.S. Senate.
The brief also highlights Jim Cash, who broke the color barrier in the Southwestern Conference and went on to attain his Ph.D. and teach at Harvard Business School while serving on several large company boards, and Robin Roberts, a star at Southeastern Louisiana University, who would become a broadcaster and host of ABC’s “Good Morning America.”
“It is just as important to remember the other teammates and classmates who met, interacted with, and ultimately were influenced by, each of these individuals — and the many others like them,” the brief states.
Other voices
Meanwhile, a brief drafted by Jonathan M. Albano on behalf of the Boston Bar Association focuses on the moral and practical imperative of maintaining diversity at undergraduate institutions, lest the pipeline of
candidates of different races and ethnicities into law schools and ultimately the legal profession be choked off.
“Without diversity, the legal profession cannot reflect the society it serves, an outcome that ultimately erodes public confidence in the judicial system,” said Albano, a partner at Morgan, Lewis & Bockius in Boston and BBA board member.
Within the practice of law, lawyers have come to “depend on a diverse set of views to do their jobs,” Albano said, noting that it is now almost second nature for attorneys preparing for trial to seek out people of different backgrounds and perspectives to see how their arguments will land.
The brief further urges the Supreme Court to “be respectful of” and consider yielding to the expertise of educators in creating the most successful diverse student body.
A coalition of organizations similarly committed to advancing diversity in the legal profession also endorsed the brief.
While going beyond the legal profession and looking at the global economy as a whole, Attorney General Maura T. Healey’s brief strikes similar chords in arguing for the need to retain admissions policies that permit race to be “one of many relevant factors” at public colleges.
Of particular concern to Healey and her colleagues in 17 other jurisdictions who signed onto the brief are members of “historically disadvantaged communities,” given the ever-rising cost of college and the importance of a degree in lifting families out of poverty.
Henshon, meanwhile, said he was struck during oral arguments that Solicitor General Donald B. Verrilli Jr. went “all in on national defense,” arguing that affirmative action in admissions policies was needed to maintain a diverse officer corps in the military, a deficiency that may have contributed to the country’s failure in Vietnam.
Potential fallout
While none of the amici would predict how the Supreme Court might decide Fisher II, Boston College Law School professor Mark S. Brodin believes the case “may well turn out to be the death knell of affirmative action and race-sensitive policies (at least at public institutions),” he wrote in an April 2014 Buffalo Law Review article.
Fisher I suggested that admissions programs that account for race are subject to an “intrusive dissection,” leaving them “vulnerable” to being picked apart by “clever attorneys,” Brodin wrote. Now, Fisher II may finish the job.
Henshon’s brief notes that there already is a case study in what happens when race is eliminated as a consideration in admissions. In California, after Proposition 209 passed, the ensuing freshman class at UCLA included just 96 African-Americans out of a class of 5,000.
Irrespective of the Fisher II decision, athletics will continue to integrate college campuses.
“For us, Ferguson, Missouri and Baltimore, Maryland are not just troubling images on the nightly news, but places where we go to recruit prospective student-athletes,” the coaches’ brief notes.
But athletics cannot be the sole source of diversity, the coaches urge. Henshon draws a parallel to France’s nominally “color-blind” society, where politicians embraced a diverse World-Cup-winning soccer team but not the broader concept of equality.
France in the past year had seen a “marked increase in racial and religious-based violence,” Henshon writes.
The kicker is that the brief was filed two weeks before the deadly attacks in Paris.
France’s situation is contrasted with South Africa, where rugby “was the vehicle to help unify and heal a post-apartheid nation,” Henshon writes. The sport could function that way because it was part of a wider societal embrace of racial healing and progress, he argues.
Yet with the Fisher II decision, the Supreme Court could take another step toward “paper-thin diversity” on college campuses, Henshon fears.
Already, Brodin said, many admissions offices may have received the message from Fisher I that the consideration of race should be scaled back to “avoid the considerable expense and unwanted media attention” of defending their programs in court.
Henshon closes his brief with the story of future President Gerald Ford standing up for an African-American teammate at the University of Michigan after opponent Georgia Tech said it would not take the field if a black man were allowed to play.
“Tolerance and diversity are not ‘conservative values’ or ‘liberal values,’” Henshon writes. “They are not ‘Democratic values’ or ‘Republican values.’ They are not ‘black values’ or ‘white values.’ They are American values.”
Henshon asks the court to honor those values but acknowledges that Fisher implicates another fundamental value: fairness, or at least the perceived unfairness of basing college admissions on anything but “merit,” which Brodin would argue is an inaccurate and thus unfair juxtaposition in its own right.
However, the majority of the current court has shown little willingness to adjust its world view.
