The Supreme Court will hear oral arguments on October 10 in Fisher v. University of Texas at Austin, an affirmative action case that may determine how universities can consider race in undergraduate admissions decisions.  In a preview of the case, two prominent attorneys came to NYU Law to debate the central issues: Gerry Walpin, former U.S. inspector general of the Corporation for National and Community Service, and Ted Shaw, former director-counsel and president of the NAACP Legal Defense and Educational Fund. Professor Deborah Malamud, who studies issues of class, race, and public policy, moderated the debate.

The event was co-sponsored by the Federalist Society, American Constitution Society, and NYU Law Democrats.

Arguing for the reversal of affirmative action on the basis of the 14th Amendment, Walpin said everyone should be treated equally by the government, with no one having an advantage because of race. “Applying a separate standard because of skin color is government-directed racism,” said Walpin, who also invoked Martin Luther King Jr.’s famous speech, singling out the lines “not…judged by the color of their skin but by the content of their character” to make the point that affirmative action actually violates Martin Luther King Jr.’s vision.

In the second half of Walpin’s argument, the lawyer said that affirmative action results in notions of racial inferiority and causes employers to harbor the suspicion that any minority may have benefited from racial preferences. Lastly, Walpin questioned whether UT Austin’s racial preferences were motivated by the aim of racial diversity or by racial politics. If universities truly sought a greater diversity of ideas, they should hire more conservative faculty, said Walpin.

Taking the opposite view, Shaw opened his argument by setting the current case against the backdrop of the history of Africans in the U.S. For 350 of the 393 years since Africans first arrived in America, African Americans lived under either Jim Crow laws, segregation, or slavery. “We have only begun to address that legacy and those who argue that legacy is unconnected to present day equality are either willfully blind or terribly ignorant,” said Shaw.

Drawing a distinction between using race for remedial purposes and using race to discriminate, Shaw said that there is “no legal or moral symmetry” between those who act in order to include others and those who use race consciousness to subordinate others. It is simply absurd, added Shaw, to think that a majority-white institution like UT Austin is “hell-bent on discriminating against white people.”

Posted on October 9, 2012