Catch Twenty-Wu? The Oral Argument in Fisher v. University of Texas and the Obfuscation of Critical Mass

Abstract

This Essay challenges the notion that critical mass emerged from the oral argument in Fisher v. University of Texas in a catch-22. Many of the conservative justices found that a failure to quantify critical mass meant that affirmative action programs were not narrowly tailored. However, if the university quantified critical mass, then it would be accused of using a quota.

The Essay argues that there is no catch-22, and the justices’ questions during argument exhibited a fundamental flaw in their understanding of the definition of critical mass. Precedent has never barred the use of numbers or goals. The essay suggests that the justices' line of questioning on the critical mass issue can best be analogized to a concept in Zen philosophy - called a wu - that describes questions that have problematic foundations and no possible answer.

Keywords: affirmative action, quotas, critical mass, race