"So what you're saying is that what counts is race above all.... You want underprivileged of a certain race and privileged of a certain race. So that's race."

Said Justice Anthony Kennedy at during the oral argument over the the University of Texas affirmative action policy. UT, following state law, automatically admits everyone who graduates from a Texas high school in the top 10%, a colorblind policy that produces a certain amount of racial diversity, especially since there are many high schools in Texas that have a very high proportion of black or Hispanic students.

So why does UT do any additional affirmative action as it fills up the portion of the entering class not admitted through the 10% program? You've already got a lot of diversity, so why do you need more? The additional affirmative action is precisely to bring in privileged black and Hispanic students, that is, the black and Hispanic students who did not attend racially isolated schools. If white students get too many of the top 10% spots at those schools, then the 10% program does not bring enough of these minority students into UT.

The university says... that the highest-ranked students at a disadvantaged school have lower SAT scores than some in the middle of the pack at a more competitive suburban high school. UT's affirmative-action program aims to open doors for minority applicants from middle-class or professional families. Such students can "help dispel stereotypical assumptions…which actually may be reinforced" by minorities admitted only because of the top-10% plan, UT said in its brief.

Justice Samuel Alito seized on that point. "I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don't think I've ever seen before," he said.

Actually, under the Court's case law, the diversity that is considered a compelling interest (which is what the state needs to defend race discrimination) is not about boosting the underprivileged. In Grutter v. Bollinger, the majority approved of the idea of  assembling a class that includes "a 'critical mass' of minority students," which does not mean "racial balancing, which is patently unconstitutional" but is "defined by reference to the educational benefits that diversity is designed to produce."

These benefits are substantial. As the District Court emphasized, the Law School’s admissions policy promotes “cross-racial understanding,” helps to break down racial stereotypes, and “enables [students] to better understand persons of different races.”...These benefits are “important and laudable,” because “classroom discussion is livelier, more spirited, and simply more enlightening and interesting” when the students have “the greatest possible variety of backgrounds.” ...

The Law School does not premise its need for critical mass on “any belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.”... To the contrary, diminishing the force of such stereotypes is both a crucial part of the Law School’s mission, and one that it cannot accomplish with only token numbers of minority students. Just as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters.

If it's about breaking down stereotypes, the 10% approach creates a problem: The minority students in the classroom tend to come from the racially isolated schools, the less privileged Texans. So, it seems, the additional affirmative action is needed to get a more varied group of minority students, in which case, the point is to bring in privileged minority students, because these are the students who — in Grutter terms — might provide the classroom benefit of teaching all the students that minority students don't have "some characteristic minority viewpoint."

Obviously, there were dissenting opinions in Grutter. For example, Justice Scalia scoffed at that idea of the compelling interest: The lesson taught by classroom diversity is "essentially the same lesson taught to (or rather learned by, for it cannot be 'taught' in the usual sense) people three feet shorter and twenty years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens."

I'm not taking a position on whether UT's admissions policy is good or whether it's constitutional. (Do not assume you know what I think. You don't.) All I am saying is that if Grutter is to be applied (and not limited or overruled), an affirmative action program that's all about boosting the most privileged minority students actually makes sense.

Did Justice Alito not see that (or was he mainly expressing disapproval)? Here's his quote (along with Justice Kennedy's), put in context, beginning at page 43 of the PDF transcript:

JUSTICE ALITO: Well, I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don't think I've ever seen before. The top 10 percent plan admits lots of African Americans -- lots of Hispanics and a fair number of African Americans. But you say, well, it's -- it's faulty, because it doesn't admit enough African Americans and Hispanics who come from privileged backgrounds. And you specifically have the example of the child of successful professionals in Dallas. Now, that's your argument? If you have -­ you have an applicant whose parents are -- let's say they're -- one of them is a partner in your law firm in Texas, another one is a part -- is another corporate lawyer. They have income that puts them in the top 1 percent of earners in the country, and they have -­ parents both have graduate degrees. They deserve a leg-up against, let's say, an Asian or a white applicant whose parents are absolutely average in terms of education and income?

[GREGORY G. GARRE, counsel for the University of Texas]: No, Your Honor. And let me -­ let me answer the question. First of all, the example comes almost word for word from the Harvard plan that this Court approved in Grutter and that Justice Powell held out in Bakke.

JUSTICE ALITO: Well, how that question be no, because being an African American or being a Hispanic is a plus factor.

MR. GARRE: Because, Your Honor, our point is, is that we want minorities from different backgrounds. We go out of our way to recruit minorities from disadvantaged backgrounds.

JUSTICE KENNEDY: So what you're saying is that what counts is race above all.

MR. GARRE: No, Your Honor, what counts is different experiences -­

JUSTICE KENNEDY: Well, that's the necessary -- that's the necessary response to Justice Alito's question.

MR. GARRE: Well, Your Honor, what we want is different experiences that are going to -- that are going to come on campus -­

JUSTICE KENNEDY: You want underprivileged of a certain race and privileged of a certain race. So that's race.

MR. GARRE: No, Your Honors, it's -- it's not race. It's just the opposite. I mean, in the LUAC decision, for example, this Court said that failing to take into account differences among members of the same race does a disservice -­

JUSTICE KENNEDY: But the reason you're reaching for the privileged is so that members of that race who are privileged can be representative, and that's race. I just -­

MR. GARRE: It's -- it's members racial group, Your Honor, bringing different experiences. And to say that -- if you took group, if you had an admissions process that to admit from a -- people from a particular background or perspective, you would want people from different perspectives.

CHIEF JUSTICE ROBERTS: Counsel -­

MR. GARRE: And that's -- that's the interests that we're discussing here. It's the interests that the Harvard plan specifically adopts and lays out -­

Will the Supreme Court affirmative action case force the presidential candidates to talk about...

... a subject both of them would prefer to avoid? The oral argument is October 10th.

“I’ve got to believe at this point in the campaign neither the president or Governor Romney is going to want to give a quote on any of this,” said Richard Taylor, a business diversity advocate and former Massachusetts transportation secretary under Romney. “If I was preparing either candidate for the debate, this would be on the checklist, … but I don’t think either campaign will be anxious to talk about it.”...

“It took three long years to pull [a federal government policy statement on the use of race in education] out of the Obama administration. It was only after we pestered and cajoled them that they finally got it out,” John Brittain, a civil rights activist and law professor at the University of the District of Columbia, said in an interview soon after the document was released. “The administration had a paralysis of analysis. …. Overall, the Obama administration just has a reluctance to take on race and equality, and when they do so everything is so carefully sanitized and scrubbed to make sure it’s the least offensive thing possible.”

There’s almost no chance that Romney would take a strong stance against affirmative action, according to Stuart Taylor, a veteran legal commentator and author of a new book on the policy.

... “No major national political figure has attacked affirmative action publicly since 1996 or before. It’s kind of remarkable. The Republicans who during the ’90s for a while were seeing some political profit in attacking affirmative action given the polls, don’t do it anymore.”

So both candidates — like many Americans — exhibit a bland, uncommitted acceptance of the long-term practice of affirmative action, and they don't want to have to talk about it in crisp, clear terms, looking at all the arguments for and against, and scrutinizing the constitutional texts and precedents. But that's exactly what the Supreme Court must do and will do on October 10th.

More debate — at the University of Wisconsin — about affirmative action.

You might remember last September, there was a huge crowd for a debate about affirmative action...

As Meade and I walked home, I called the students "admirable" for not getting out of hand and shouting down the speakers, and Meade made fun of my low standard. I said, "It's Wisconsin. Kudos for not rioting."

Earlier in the day, there was an outbreak of something that either was or was not violence, and students — mostly undergrad, not law students — were passionate but reasonably controlled at the debate later on. (Here's video I shot and edited.)

Tonight's debate, focusing on the pending Supreme Court case Texas v. Fisher, should be a more modest event — at the law school at 6:15. My colleague Larry Church will once again take the pro side on affirmative action, but he's got a different sparring partner, lawprof Rick Esenberg. Last year, the anti-affirmative action side was taken by Roger Clegg, president of the Center for Equal Opportunity, which was mounting an attack on the admissions policies at the University of Wisconsin. Fisher is about undergraduate admissions at the University of Texas.

University of Texas Law School Dean resigns "under pressure."

I don't know what that's all about, but...

In an interview, Sager characterizes the faculty compensation issues as "circumstances that undermine" the success he has achieved at the law school. He says he became a dean at a time when nontransparency regarding faculty compensation was the norm at UT and other law schools. But during his tenure, he says, "transparency began rolling in" and "the transition between transparency and nontransparency" created problems. Specially, in the 2009-2010 academic school year, he says he shared compensation information with a budget committee composed of faculty members but due to privacy concerns, he allowed only a subcomittee to see one-time loan arrangements with certain faculty members. Subsequently, some faculty members sought and received the open records information regarding compensation, he says.

Loan arrangements... the transition between transparency and nontransparency... One can only speculate about the discord that... rolled in....

Look, you can see their salaries.

When you set out to destroy someone's good name, are you responsible to the other people who happen to have that name?

Matthew C. Ryan is not the most unusual name. It's not unique, but it's also not John Smith — a name so common that when you hear something bad about someone with that name, you don't assume it relates to any particular person with that name. If you hear Matthew C. Ryan, you may very well assume it's the Matthew C. Ryan you know. This is especially so when the name is also tied to a specific place — in this case, the University of Texas in Austin, Texas.

A Google search for Matthew C. Ryan today yields a mere 797 hits, and this is after all the stories telling us one of the names behind the pseudonyms in the lawsuit brought by the Yale law students who had some mean, nasty thing written about them on the AutoAdmit website. Surely, before the release of the name, a Google search would show that it is surprisingly rare worldwide and that there is another Matthew C. Ryan at the the University of Texas. But they sent the name out anyway, and the damage has been done.

Now, is that a tort? The lawprof lawyer who is representing the plaintiffs is enthused about the expansion of tort liability for speech that damages reputation or causes emotional distress, so it will be sad if he can't enjoy the expansive theories of tort law that may come in the form of a lawsuit filed by Matthew C. Ryan. But the pleasure is there for fans of irony and poetic justice. To top it all off, Matthew C. Ryan is a lawprof lawyer. Sweet!

Yes, you could say a lawprof lawyer should have a thick skin and tough it out. Hey, I thought the Yale law students would do better to show the world — and their future clients and employers — that they have thick skins and can tough it out. But they brought a lawsuit. They wanted to show that there are consequences for the things you say that hurt people, consequences that courts should enforce.

Well, then.

Lawsuits. They breed.