The future of affirmative action in college admissions was thrust into the nation's brightest legal spotlight Wednesday when the University of Texas had to defend its way of evaluating prospective students before the U.S. Supreme Court -- almost half of whose members have expressed hostility toward most forms of racial preference.
A hot-button issue for three decades, racial preference in the admissions process arose again when Abigail Fisher, of Sugar Land, sued the school after being denied admission to the 2008 freshman class. Fisher failed to prove the UT scheme illegal in district court and at the court of appeals, but her chances improved when the Supreme Court agreed to hear the case, suggesting that justices had an interest in revisiting whether skin color or ethnic background is a factor when weighing the merits of a potential student.
Most of UT's freshman class is admitted through an automatic process that used to be known as the 10 percent rule, which guaranteed acceptance to any student graduating in the top 10 percent of his public high school class.
Although the law was changed slightly in 2009 so that the percentage of those automatically eligible varies slightly, the effect was to significantly increase the number of minority students enrolled. But UT officials felt that total was well short of what was desired, especially for African-American students.
The problem, both for the school and for the justices reviewing the current case, is how much diversity is enough.
"There has to be a logical endpoint to your use of race," Chief Justice John Roberts said to UT's lawyer, Gregory Garre. "What is the logical endpoint? When will I know that you've reached a critical mass?"
Garre said the school looks carefully at enrollment data, especially for black students. When the 10 percent plan was implemented, black enrollment dropped to 3 percent. It has remained low even as Hispanic enrollment has gone up.
"I think we all agree that 3 percent is not a critical mass," Garre said.
Near the end of the session, which went well over the hour allotted to it, Roberts complained about not having a good definition of "critical mass" -- the achievement of which presumably would spell an end to any need for racial preference.
"I'm hearing a lot about what it's not," he said. "I would like to know what it is."
A 'holistic review'
Wednesday's combatants framed the matter in familiar terms, claiming it was still a tool useful in building diverse student bodies or that it was an unfair and simplistic method that had outlived its usefulness.
Justices, too, fell along predicted lines in their questioning, meaning that most eyes turned again to Justice Anthony Kennedy, considered the swing vote.
The justices homed in on UT's complicated "holistic review" process. Most of the freshman class are students in the top tier of their class who are automatically accepted. The rest are evaluated through a process that considers race as well as academic and nonacademic factors in an effort to achieve a "critical mass" of students from a variety of ethnic, social and socioeconomic backgrounds.
Justice Samuel Alito said the UT method confused him because it includes race and then, at times, discounts race.
" 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," Alito said. "The top 10 percent plan admits lots of Hispanics and a fair number of African-Americans.
"But you say, well, it's faulty, because it doesn't admit enough ... who come from privileged backgrounds. If you have an applicant whose parents ... have income that puts them in the top 1 percent of earners in the country, 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?"
Garre said racial preferences should not only favor the poor.
"So what you're saying is that what counts is race above all," Kennedy said.
"No, your honor, what counts is different experiences," Garre said.
"You want underprivileged of a certain race and privileged of a certain race," Kennedy shot back. "So that's race."
Similar to '03 case
Liberal justices notes that the Texas program is similar to the one endorsed in Grutter v. Bollinger, the court's 2003 decision that has guided colleges' use of racial preference in admissions.
"It seems to me that this program is no more aggressive than the one in Grutter," Justice Ruth Bader Ginsburg said. "In fact, it's more modest."
Should Kennedy side completely with the apparent votes from the conservative wing, then UT will no longer be able to consider an applicant's racial or ethnic background when conducting its holistic review of potential students who did not qualify under the automatic plan.
But the court could end up in a 4-4 tie -- Justice Elena Kagan recused herself because of her involvement in the case as solicitor general -- and leave the system intact, or it could craft a decision that might allow race to be considered but in more narrow circumstances.
The key vote in the Grutter case, retired Justice Sandra Day O'Connor, was among a packed gallery that heard UT's system of student evaluation face tough scrutiny.
Her majority opinion said the principles embodied in it were temporary and that colleges should move toward color-blind admissions. She said that should be possible within 25 years.
But as a small collection of demonstrators outside the court chanted mostly in favor of the UT system, a good portion of the jurists inside indicated that a quarter-century was too long to wait.
After the hearing, UT President Bill Powers said the school is committed to a multi-ethnic student body regardless of how the court rules.
Alex Yap and Summer Ballentine contributed to this report from Washington.
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