ACSBlog

By Mark Ladov, counsel for the Justice Program of the Brennan Center for Justice at NYU School of Law.

All eyes were on Justice Kennedy at this week’s oral argument in Fisher v. University of Texas at Austin.  As readers of this blog well know, the Supreme Court holds the opportunity to rule on the future of race-conscious inclusive admissions policies — and once again, Justice Kennedy is presumed to be the swing Justice who will decide on the direction of the Court. It is always dangerous to predict rulings based on the Justices’ questions at oral argument, a point driven home by last term’s surprise ending to the Affordable Care Act litigation. And Justice Kennedy, in particular, seemed to keep his cards close in the questions he posed. But the oral argument does suggest that the forthcoming ruling will hinge on one key question: whether the University has persuaded the Court that race-conscious admissions policies remain necessary to achieve a “critical mass” of diversity in its classrooms and campus.

The concept of “critical mass” comes directly from the Supreme Court’s 2003 ruling in Grutter v. Bollinger, where the Court affirmed the ability of University of Michigan Law School to use a race-conscious but individualized review to ensure a “critical mass” of diversity in its student body. The term did not refer to a specific number, but to an aspiration: that a class filled with sufficient diversity would ensure that no individual felt isolated or was forced to “represent” his or her race; that racial stereotypes would break down within a truly varied student body; and that the university would fully realize the educational benefits of diversity for all students.

UT provided the Court with plenty of evidence that it has yet to reach this critical mass. The university used survey evidence to show that African American and Latino students continue to feel unrepresented on campus. UT showed that minority enrollment plummeted when the school relied solely on a plan to admit the top ten percent of every high school class; this policy fosters a certain level of diversity, but only because Texas high schools remain so segregated by race and class. The school looked closely at its demographics to see that certain classes and programs remain segregated. UT did not rely on any one single fact or figure, but instead followed Grutter’s instruction to look broadly at whether the benefits of diversity on its campus could still be improved.

by Jeremy Leaming

The efforts by Republican controlled statehouses to create more hurdles to voting, such as limiting early voting, creating onerous voter identification requirements, and making it more difficult to conduct voter registration drives, are hardly a recent trend.

Victoria Bassetti, author of Electoral Dysfunction: A Survival Manual for American Voters, argues in numerous articles that for a country that prides itself on its form of democracy the burdens on voting do not make good public policy nor provide a solid foundation for a healthy democracy. (This month PBS will air an “Electoral Dysfunction” documentary; the book is a companion piece to the documentary.)

In a piece for The Washington Post, Bassetti says our system of voting is “mystifying” to other countries, largely because of the burdens we place on voting.

“In the United States, we put the burden on the voter,” she writes. “And in doing so, we keep company with nations such as the Bahamas, Belize and Burundi.”

While maintaining that very few would label voter registration “anti-democratic,” she notes that “many political and social scientists believe that our country’s practice of putting the registration burden on individuals, coupled with outmoded, paper-intense registration systems, are major causes of the United States’ perennially low voter turnout. One study estimated that voter registration barriers in the United States depress turnout by 5 to 10 percent.”

In an Oct. 6 column for The New York Times, Bassetti explores how low turnout “produces poor representation, which produces laws people are disinclined to obey and so undermine the process.” She also mentions a rather interesting study regarding how difficult it can be for men to vote, especially if their candidates lose. The study, produced by scientists at Duke and University of Michigan, has something to do with testosterone levels in men and people with normal serotonin levels. (Simply or crudely put, voting can be tough on men because of testosterone reactions and people with weak serotonin systems.)

Though interesting, Bassetti says such studies are not especially helpful to handling “complex issues facing our democracy.”

Some of that complexity centers on the bureaucratic mess voting has become in many states.