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Over the past few months, student protests have spread throughout college campuses, demanding racial justice and greater support for diversity in academia. The protests at the University of Missouri are the most notable, but student activism has spread to over 60 campuses, including the Ivy League alma matters of the Supreme Court justices, where the protests have met with both support and derision.
Will student activism impact the justices as they get ready to hear Fisher v. University of Texas, a challenge to affirmative action in college admissions? That's what Adam Liptak argues in Tuesday's edition of The New York Times. We're not so sure. Here's why.
Liptak's argument is fairly straight forward: as student activism over race spreads, "the justices are almost certainly paying attention to the protests" and their opinion of them may impact their approach to Fisher. And it might not be for the better.
Liptak surveys a host of academics and attorneys on how the protests might affect the Court -- and particularly Justice Kennedy, who is likely to be the deciding vote and who has previously supported racial diversity as a way to create "enhanced classroom dialogue." Sherrilyn Ifill, president of the NAACP Legal Defense and Education Fund, thinks that protest show how diversity "can raise provocative questions that otherwise would not be raised."
But, Liptak writes, "Justice Kennedy may draw a different lesson from recent upheavals: that campuses are in the grip of political orthodoxy, one that is impervious to the intellectual diversity that affirmative action is said to promote." A connection, even a subconscious one, between diversity and "the suppression of speech" will hurt affirmative action in admissions, according to Richard O. Lempert of the University of Michigan Law School.
It's an interesting angle, but we're not too sure that campus protests will have much of an impact on Fisher's outcome. First, if alma matters matter, it's important to note that none of the justices attended state schools for undergrad or law school. Not a one.
Private schools are free to adopt their own race-conscious admissions policies. Fisher involves state action -- the government's different treatment of similar situated college applicants due to their race -- and the justices will certainly be aware of the difference. Plus, the experience of racial diversity in the rarified air of Harvard or Yale is certainly different from that of students at Mizzou, two hours west of Ferguson.
For the curious, Justices Alito, Sotomayor, and Kagan went to Princeton for undergrad, Kennedy and Breyer attended Stanford, Roberts went to Harvard, Scalia to Georgetown, Ginsburg to Cornell, and Thomas to Holy Cross, the only non-Ivy. For law school, the justices (and their clerks) attended only three schools: Harvard, Yale, or Columbia -- and Columbia is only there because of Justice Ginsburg, who transferred there from Harvard.
If anything is going to effect the justices' ruling in Fisher, outside of the law and their jurisprudence, it's their own history. Last summer, for example, The New York Times deftly demonstrated how Justice Kennedy's own experience with a gay mentor helped shape his approach to laws discriminating against gays and lesbians.
When it comes to college admissions, the political -- and the legal -- is personal for the justices. The first time Fisher came before the Supreme Court, Justice Sotomayor wrote a highly personal dissent discussing her experiences growing up as a Puerto Rican girl in the Bronx. That dissent was never released -- it was strong enough to change the Court's mind, leading the majority to punt in Fisher I and saving race conscious admissions, for the time being.
Justice Thomas, who helped found Holy Cross's Black Student Union, has also been candid about how affirmative action affected him: by causing others to view his accomplishments as a result of racial promotion, instead of personal achievement. That perspective has also worked its way into his jurisprudence. In Adarand, he wrote that such programs "stamp minorities with a badge of inferiority" and provoke resentment from "those who believe that they have been wronged by the government's use of race."
You can expect to hear similar arguments from Justices Sotomayor and Thomas when Fisher is decided. (And, for Justice Sotomayor, before. Oral arguments are scheduled for December 9th. Justice Thomas will almost certainly remain silent.) But for Kennedy, well, whatever influences his decision, the outcome is likely to be a surprise.
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