{"id":26121,"date":"2012-10-21T15:49:04","date_gmt":"2012-10-21T15:49:04","guid":{"rendered":"http:\/\/www.mixedracestudies.org\/wordpress\/?p=26121"},"modified":"2012-10-21T15:49:04","modified_gmt":"2012-10-21T15:49:04","slug":"reaping-the-whirlwind","status":"publish","type":"post","link":"https:\/\/mixedracestudies.org\/wp\/?p=26121","title":{"rendered":"Reaping the Whirlwind"},"content":{"rendered":"

Reaping the Whirlwind<\/a><\/em><\/strong><\/p>\n

The New York Times<\/a>
\nOpinionator: Exculive Online Commentary From The Times
\n2012-10-17<\/p>\n

Linda Greenhouse<\/a><\/strong>, Senior Research Scholar in Law, Knight Distinguished Journalist-in-Residence, and Joseph Goldstein Lecturer in Law
\nYale University<\/em><\/p>\n

On reading the transcript<\/a> and listening to the audio<\/a> of last week\u2019s Supreme Court argument in the University of Texas affirmative action case, my primary reaction was one of embarrassment \u2014 for the court and also for Texas.<\/p>\n

First the court. Of the four justices most intent on curbing or totally eradicating affirmative action \u2014 Chief Justice John G. Roberts Jr.<\/a> and Justices Antonin Scalia<\/a>, Samuel A. Alito Jr.<\/a> and Clarence Thomas<\/a> \u2014 the three who spoke (minus Justice Thomas, of course) failed to engage with the deep issues raised by Fisher v. University of Texas<\/a><\/em>. Instead, they toyed with the case.<\/p>\n

Chief Justice Roberts, after posing only one question to the lawyer representing Abigail Fisher, the rejected white applicant who filed a lawsuit claiming she was unconstitutionally discriminated against, flung 27 questions at the university\u2019s lawyer, Gregory G. Garre<\/a>, many seemingly designed to make the university\u2019s commitment to assembling a diverse student body look silly. \u201cShould someone who is one-quarter Hispanic check the Hispanic box or some different box?\u201d the chief justice wanted to know. \u201cWhat about one-eighth?\u201d he persisted. \u201cWould it violate the honor code for someone who is one-eighth Hispanic and says \u2018I identify as Hispanic\u2019 to check the Hispanic box?\u201d<\/strong><\/p>\n

Justice Scalia piled on: \u201cDid they require everybody to check a box or they have somebody figure out, oh, this person looks one thirty-second Hispanic and that\u2019s enough?\u201d<\/strong><\/p>\n

On it went, and it was impossible to avoid the conclusion that ridicule rather than a search for understanding was the name of the game. \u201cHow many people are there in the affirmative action department of the University of Texas?\u201d Justice Scalia asked Mr. Garre. \u201cDo you have any idea? There must be a lot of people to, you know, to monitor all these classes and do all of this assessment of race throughout the thing.\u201d Justice Scalia mused that if the court invalidated the program, \u201cthere would be a large number of people out of a job,\u201d a prospect that seemed to tickle his fancy.<\/p>\n

It doesn\u2019t take a genius to point out that it\u2019s inherently problematic for the government to count people by race (\u201cIt is a sordid business, this divvying us up by race,\u201d as Chief Justice Roberts famously expressed the thought during his first term on the court, dissenting from a 2006 Voting Rights Act decision<\/a> that found that Texas had improperly diluted Latino voting strength). That\u2019s why the Supreme Court has insisted that any affirmative action plan must meet the test of \u201cstrict scrutiny\u201d \u2014 that is, that the plan must be \u201cnarrowly tailored\u201d to serve a \u201ccompelling interest.\u201d<\/p>\n

But the fact is, as the justices obviously know, that the court has concluded that affirmative action in higher education admissions can clear that high bar \u2014 as it did nine years ago in Grutter v. Bollinger<\/a><\/em>, the University of Michigan Law School decision. In other words, there was a context in which the Regents of the University of Texas, following upon the Michigan decision, chose to act, a history they sought to acknowledge, and a better future they hoped to achieve for their diverse state by supplementing the unsatisfactory and mechanical \u201ctop 10 percent\u201d admissions plan with one that considers each applicant as an individual \u2014 with race as \u201conly one modest factor among many others,\u201d according to the university\u2019s brief. It was this context that was almost entirely missing from the justices\u2019 questions to the university\u2019s lawyer. The questions were not so much hostile as trivializing…<\/p>\n

Read the entire opinion piece here<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Reaping the Whirlwind The New York Times Opinionator: Exculive Online Commentary From The Times 2012-10-17 Linda Greenhouse, Senior Research Scholar in Law, Knight Distinguished Journalist-in-Residence, and Joseph Goldstein Lecturer in Law Yale University On reading the transcript and listening to the audio of last week\u2019s Supreme Court argument in the University of Texas affirmative action […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12,2895,1467,8,20],"tags":[12555,12556,12554,2640,2327,5752],"class_list":["post-26121","post","type-post","status-publish","format-standard","hentry","category-articles","category-campus-life","category-law","category-media-archive","category-usa","tag-abigail-fisher","tag-fisher-v-university-of-texas","tag-linda-greenhouse","tag-new-york-times","tag-the-new-york-times","tag-university-of-texas"],"_links":{"self":[{"href":"https:\/\/mixedracestudies.org\/wp\/index.php?rest_route=\/wp\/v2\/posts\/26121","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mixedracestudies.org\/wp\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mixedracestudies.org\/wp\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mixedracestudies.org\/wp\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/mixedracestudies.org\/wp\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=26121"}],"version-history":[{"count":0,"href":"https:\/\/mixedracestudies.org\/wp\/index.php?rest_route=\/wp\/v2\/posts\/26121\/revisions"}],"wp:attachment":[{"href":"https:\/\/mixedracestudies.org\/wp\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=26121"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mixedracestudies.org\/wp\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=26121"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mixedracestudies.org\/wp\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=26121"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}