You are currently browsing the category archive for the ‘Access’ category.
The typical Supreme Court oral argument lasts an hour, with the lawyer for the petitioner (whoever brought the suit) taking the first thirty minutes, and the lawyer for the respondent (the other party) taking the second. Each attorney stands at a podium when it’s his or her turn, and gives a presentation on their case to the nine justices. Or tries to.
That half hour isn’t just their time for making arguments, it’s also the justices’ time for questioning, and they can — and do — interrupt at any moment, for any reason. As an attorney arguing in front of the Supremes, you’re trying your best to get through the material you want to get through while also responding to any idea that pops into any justice’s mind. It’s a bit like batting in the World Series, but with every player on the opposite team hurling balls at your head.
It’s kind of awesome.
I’ve attended SCOTUS oral arguments only once, for a zero-profile case that a friend of a friend was arguing. (I took a road trip one other time and slept out all night trying to get in for Lawrence v. Texas, but a local college’s RA had brought her whole floor and we missed the cut.) The case I saw presented was a boring, technical, marginal one ultimately decided in a 9-0 decision, but seeing it argued in person was thrilling, strange, and — because I knew one of the attorneys — nerve-wracking even to watch.
The Supreme Court is, according to the Constitution, the final interpreter of the Constitution itself. If you don’t like what they decide, you’ve got to pass a constitutional amendment overturning them (something that’s ridiculously hard to do and hasn’t happened in four decades) or just sit tight and wait until they change their minds. And because there are only nine justices, and because they have so much discretion, changing one of their minds can change the course of history.
Supreme Court oral arguments are as close as an ordinary American can ever hope to get to watching the actual internal machinery of the federal government in operation. Whatever you think of that government, whatever you think of the institution of the Court itself, it’s impossible to observe it closely and not come away with a staggering sense of historical contingency.
Fisher v. Texas, the college admissions case SCOTUS heard argued last week, is a big deal. A win for the plaintiff, Abigail Fisher, could mean an end to affirmative action in higher education in the United States, a major transformation in the country’s colleges and universities, and an altering of the life opportunities of the next few generations of Americans. In arguing this case, the Supremes were arguing over not just higher education policy but over what kind of country we are, what principles will guide us going forward. They were arguing about the nature of race and the meaning of fairness, and because they’re the Supreme Court of the United States, they get to decide how those concepts operate in American law.
This is a big deal and a big, complicated case, and over the next week or so I’ll be making my way through the oral argument transcript, analyzing the most important (and weirdest) moments.
See you tomorrow for part one.
The transcript of Wednesday’s oral argument was released that afternoon, and it’s fascinating reading. So fascinating, in fact, that I think I’m going to make a project of writing about it next week — a series of posts excerpting and discussing the most interesting exchanges.
In the meantime, I wanted to just highlight a couple of things.
First, the justices were clearly paying attention to the “standing” issue — the question of whether Abigail Fisher has a case she’s properly situated to bring before the Court. You can’t just decide to sue the government because you don’t like something they did. (If you could, everybody would be suing all the time, and the court system would collapse.) You have to show that you’ve been harmed in a way that the courts can fix, and the standards for what kinds of harm count in which circumstances are narrow and complicated.
I’ll go into this in a little more detail next week, but given the way I broke down the case’s possible outcomes in my last post, it’s worth underscoring that the Supremes may just rule that Fisher wasn’t harmed, or can’t be made whole, and show her the door. If that happens, we’ll go through all this again with another lawsuit brought by a better plaintiff at some point in the next few years — possibly with a different lineup of justices on the Court, and almost certainly with Elena Kagan able to participate fully.
Second, Justice Sotomayor was a pretty strong questioner in this, her first campus affirmative action case. Given that she got into Princeton as an affirmative action admit, and that she once described herself as “a perfect affirmative action baby,” that’s perhaps not surprising. But it seems to me that the impact of Sotomayor’s advocacy, and her life experience, may be felt more in the next phases of the process than it was in oral arguments. Sonia Sotomayor would not be sitting on the Supreme Court today if affirmative action didn’t exist, and that fact renders the Court’s dilemma in this case more concrete than it otherwise might be.
Yesterday I wrote a piece about a Tuesday evening meeting of the CUNY Queensboro Community College Academic Senate, but the piece wasn’t quite complete because I didn’t have confirmation of the vote results or final text of the resolutions. Well, I do now, and it’s pretty extraordinary.
To recap: A few weeks ago an administrator at QCC threatened to dismantle the college’s English Department and outsource its composition course offerings in retaliation for the department’s refusal to scale back its comp courses to comply with CUNY’s new Pathways curriculum initiative. The administrator in question eventually apologized, and the president of QCC kind-of sort-of walked back the threats.
Which brings us to Tuesday.
On Tuesday evening the Queensboro Academic Senate passed two resolutions in which they rejected the administration’s actions in the strongest possible terms. First, they denounced any attempt to shut down composition at QCC over the Pathways dispute, declaring that such a move would violate state law, put the college’s accreditation in jeopardy, and contravene various binding regulations and policies. That resolution passed in a nearly unanimous vote.
But it was the second resolution, which passed by a reported 44-12 margin, where the Academic Senate really laid down the law. That resolution began with an overview of the deep flaws in the Pathways program and the method by which the CUNY administration attempted to implement it, and then continued on to declare the faculty’s support for the QCC English Department’s refusal to compromise their academic integrity in the composition vote.
Looking forward, the Academic Senate declared that they would not participate in any further deliberations on the implementation of Pathways at QCC “until and unless Vice President Steele’s email outlining the consequences of the English Department vote is formally retracted” and the administration pledges in writing “that the academic judgment and academic freedom of the faculty will be upheld without reprisal.”
Finally, the resolution declared that “no curriculum, adopted by the faculty under pressure and constraint, should ever be interpreted by Administrative personnel … or any media organization as denoting any degree of faculty support for the Pathways initiative, which is overwhelmingly rejected by members of our faculty as harmful to our students and poor educational practice.”
The upshot of this is that the QCC Academic Senate is not merely on record declaring its opposition to Pathways, but also vowing not to even contemplate implementation of any of its provisions until the administration guarantees their freedom to resolve those issues to their own satisfaction in an open, free, and unencumbered manner.
The pushback against Pathways is heating up.
Regular readers will remember that a few weeks ago an administrator at CUNY’s Queensboro Community College threatened to eviscerate the college’s English Department — eliminate composition courses at the college, terminate all adjuncts, halt all job searches, fire full-time faculty — in retaliation for the department’s refusal to scale back its comp courses to comply with Pathways, a controversial new CUNY-wide curricular scheme. It was bizarre, and scary.
The administrator in question eventually apologized in the face of criticism from this site and a bunch of other good folks, and the president of QCC walked back — but didn’t quite close the door on — her threats. The story has been simmering on campus ever since, but there haven’t been any big public developments until now.
Last night the Queensboro Academic Senate met and made it clear that they’re standing by the department and will resist any attempt to go forward with the administration’s threats. I’m still working on getting all the official details out of the meeting, but here’s what I’ve been told so far.
First, in a “nearly unanimous” vote, the Academic Senate passed a resolution affirming Queensboro’s non-negotiable obligation to continue to offer composition courses to its students. “It shall be the official policy of Queensboro Community College,” the resolution declared, that the college “must not violate state law or regulation … jeopardize its accreditations … [or] violate its agreements … by failing to offer courses in sufficient number required for its degree programs.” It further declared that “these obligations must be honored, irrespective of whether Queensboro’s course listings adhere to the specifications of the CUNY Common Required and Flexible Cores.”
Queensboro needs to offer composition, in other words, and as far as the Academic Senate is concerned the college will continue to offer composition, whatever happens with the Pathways fight.
An additional resolution saw more debate, a little more opposition, and a few amendments, and I don’t yet have a precise picture of how that discussion turned out. But in its original form, the second resolution noted the CUNY administration’s lack of attention to “the objections of faculty across CUNY” to the Pathways plan, and called the proposal to scale back composition and similar courses a “particularly problematic” change to “already flawed … schema.” Reviewing showdown between the English department and the QCC administration the resolution declared its “strong support” for the department’s “academic freedom … to render their best academic judgments” on such issues.
In a meatier, forward-looking passage the resolution — again, as originally proposed — declared that “no further review” of Pathways course specifications “can proceed … until and unless the academic judgment and academic freedom of the faculty are fully respected, and guaranteed, in a written document” and the threats to cut course offerings and faculty “is formally retracted” in writing.
Finally, the resolution declared that “no curriculum, adopted by the faculty under pressure and constraint, should ever be interpreted by Administrative personnel … or any media organization as denoting any degree of faculty support for the Pathways initiative, which is overwhelmingly rejected by members of our faculty as harmful to our students and poor educational practice.”
I’m told that this resolution passed by a margin of about four-to-one after unspecified amendments. As soon as I have the exact details I’ll pass them along.
For an hour this morning, starting at eleven o’clock Eastern Time, the US Supreme Court will interrogate lawyers representing the state of Texas, the federal government, and a young woman who recently graduated from Louisiana State University. That woman, Abigail Noel Fisher, is suing the University of Texas in an attempt to recoup a $50 application fee and a $50 housing deposit that she forfeited when she was denied admission to UT several years ago.
It’s a weird case, and it gets weirder. The Supremes last addressed affirmative action in college admissions — the issue at the heart of today’s case — just nine years ago, with Justice Sandra Day O’Connor fashioning a narrow compromise that allowed campuses to consider race (but not in any quantifiable way) in order to promote campus diversity (but not as redress for past discrimination). Many observers consider it unlikely that Justice Anthony Kennedy will be persuaded to completely abandon that standard, particularly so soon after it was implemented.
Complicating things even further, the newest member of the Court — Elena Kagan, herself a former university dean (Harvard Law, 2003-2009) — won’t be participating, having recused herself due to her involvement in the case during her brief tenure as President Obama’s first Solicitor General.
The Court is deeply divided on the issue of affirmative action right now. In a 2007 opinion Chief Justice Roberts — joined by the Court’s other three staunch conservatives — wrote flatly (and famously) that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” That doesn’t leave a lot of wiggle room.
On the other side, Kagan is as noted sitting this one out, and two of her liberal colleagues are on record in support of affirmative action in college admissions. The third, Obama appointee Sonia Sotomayor, hasn’t written on the subject yet as a justice, but she seems an unlikely defector on this issue.
Given all this, and barring any truly bizarre surprises, there are three ways this decision could come down:
First, Justice Kennedy could join with the Court’s four most conservative justices in a decision striking down affirmative action in college admissions entirely. Many observers consider this unlikely, but others note that Kennedy has never cast a vote on the Court in favor of an affirmative action policy.
Second, Kennedy could join with the Court’s conservatives in a decision that preserves campus affirmative action, but limits it even further. Considering the narrow scope in which admissions officials currently operate, and the fact that it was Kennedy himself who established the present framework, this is likely to result in a head-scratcher of a decision.
And third, Kennedy could join with the Court’s three liberals in affirming the status quo, or something similar. This would mean a four-four tie, which would, given the Court’s rules, leave the Texas admissions setup intact without creating new precedent. If that happens, the Court may well call a do-over with a new case — and Kagan’s participation — in the fairly near future.
If I had to bet, I’d bet on number three. But I wouldn’t bet much. (For a deeper analysis of all this from someone who knows much more than I do, check out this detailed analysis from SCOTUSblog. For my own take on the moral and practical issues at stake in the case, read this rant from yesterday.)
Oral arguments are at eleven o’clock this morning. Transcripts should be made available this afternoon, and audio at the end of the week. (The Supreme Court does not permit video recording or livestreaming of oral arguments.) Expect lots of wild guessing and speculation by the end of the day about what the arguments mean (including from me), and look for an actual decision to come down sometime next spring.
studentactivism.net 
Recent Comments