The majority opinion in Grutter, written in 2003 by the now-retired Justice Sandra Day O’Connor, predicted that affirmative action in higher education would no longer be needed after 25 years. That prediction had no basis in law, as Justice Ginsburg’s concurrence explained, other than the fact that government-sponsored race-conscious programs needed to have some “logical end point.” “From today’s vantage point,” Justice Ginsburg wrote, “one may hope, but not firmly forecast, that over the next generation’s span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.”[1]

Chief Justice Roberts asked Garre to weigh in on Grutter’s prediction, now 12 years old, and whether UT anticipates to “hit the deadline.” As Garre tries to explain, however, the attention right now should not be on trying to come up with a deadline for addressing the problems facing minority students that continue to this day, but rather on actually addressing those problems and preserving the tools like affirmative action that can be used to achieve equal opportunity.

[1] Grutter v. Bollinger, 539 U.S. 306, 346 (2003) (Ginsburg, J., concurring).