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Fisher Args: Breyer Fears, Kennedy Grouses, Scalia Plays Trump

Yesterday, the Court heard arguments in Fisher v. University of Texas at Austin, a challenge to UT's use of race as a factor in admissions decisions. Fisher is one of the most high-profile, contentious cases the Supreme Court will hear this year and oral arguments reflected Fisher's import.

The debate was lively, a bit long, and even controversial, with one Justice's comments on race eliciting audible gasps from the gallery. Here's what you need to know.

Who Said It, Justice Scalia or Donald Trump?

We'll start with the most controversial comment of the day:

There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less -- a slower-track school where they do well ... I'm just not impressed with the fact that the University of Texas has fewer [minority students]. Maybe it ought to have fewer.

No, it's not Trump who said that, it's Justice Antonin Scalia, though we're surprised a comparison between the two hasn't been made before. (Both are fans of ridiculous hyperbole, both do not shy from over-the-top, offensive statements, and neither is a champion of diversity -- or tact.)

When Justice Scalia made this argument, there were gasps in the courtroom, a rarity for Supreme Court oral arguments. What Justice Scalia is proposing, essentially, is that black and minority students are done a disservice when they are admitted to top colleges, since they come from "lesser" (his words) schools and aren't prepared for a more challenging education.

Is It Racist?

Were Justice Scalia's comments racist? Well, they certain sound like what George W. Bush would call "the soft bigotry of low expectations." They've been denounced as racist by plenty.

But, as Justice Scalia noted at the time, the theory is not his. He's invoking the "mismatch theory," the idea that taking students and putting them in institutions unsuited to them actually harms those students. It's an idea that's been referenced, with more nuance, by Justice Thomas, for example, and advanced by UCLA Law professor Richard Sander, whose amicus brief Justice Scalia referenced. The theory has plenty of detractors. We'll let you decide yourself if it has any merit.

Justice Kennedy Just Wants Out

Now to the justice who really matters, Kennedy. Justice Kennedy has long spoken in favor of the idea of diversity in education, but he has never actually voted to support a school affirmative action program. Fisher might finally force his hand -- and he doesn't seem happy about it.

In 2013, the Court heard Fisher I and punted -- sending the case back to the Fifth Circuit for a more exacting strict scrutiny review. At yesterday's arguments, Justice Kennedy seemed frustrated at the prospect of being forced to decide essentially the same case as the Court saw in 2013.

"The litigants, and frankly this Court, have been denied the advantage and the perspective that would have been gained if there would be additional fact-finding," Justice Kennedy claimed. "We're just arguing the same case," he said early on. "It's as if nothing had happened."

This could give Justice Kennedy a chance to avoid a ruling on the merits once again. The Court could simply remand the case once more, this time for further development of the record. It's an unlikely outcome, but still quite possible.

Justice Ginsburg Rains on the Top 10 Percent Parade

Though race-conscious admissions are the focus of this case, that admission process is actually how very few students enter the University of Texas. Instead, about 75 percent of UT's students enter through a top 10 percent program, where the best students at each high school are guaranteed admission to the university. Students aren't competing with everyone throughout the state, but only with their peers at their school.

The top 10 percent plan has helped maintain admissions diversity without directly accounting for race. Several of the conservative justices spoke highly of it during oral arguments. But Justice Ginsburg was less impressed, noting that admissions diversity through the top 10 percent plan is predicated on de facto segregation at the high school level. That program itself is not too different from using race as a plus factor in admissions:

It seems to me that it is so obviously driven by one thing only, and that thing is race. It's totally dependent upon having racially segregated neighborhoods, racially segregated schools, and it operates as a disincentive for a minority student to step out of that segregated community and attempt to get an integrated education.

Justice Breyer Fears This Could Be the End

Justice Breyer worried aloud that the Supreme Court could end affirmative action once and for all. "People in the universities and elsewhere are worried," Justice Breyer explained, "that we will [...] kill affirmative action through a death by a thousand cuts. We promised in Fisher I that we wouldn't."

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