When the U.S. Supreme Court last ruled on affirmative action in college admissions, in 2003, the justices in the 5-4 majority predicted that
racial preferences would no longer be necessary to achieve student body diversity in 25 years.
"I know that time flies, but I think only nine years have passed,"
Justice Stephen Breyer said Wednesday during oral arguments in a lawsuit
challenging the limited use of racial and ethnic considerations by the
University of Texas.
And just as it was in the 2003 case involving the University of Michigan,
the high court Wednesday seemed closely divided on a highly contested question
of political and legal import that underscores a wider national debate about
racial equality.
The justices peppered Gregory G. Garre, a lawyer for the university, and
Bert W. Rein, a lawyer for Abigail Fisher, a white student who sued in 2008
after she was denied admission, with a host of questions and comments that
went to the specifics of racial and ethnic factors in UT's admission program,
as well as to the larger issue of race-conscious admissions in higher
education generally.
There appeared to be little doubt that the court's liberal wing,
including Breyer, was sympathetic to UT's use of race and ethnicity, while the
conservative wing questioned whether the university's program passes
constitutional muster. Anthony Kennedy, who might be a swing vote, challenged
both sides with his questions and comments.
"You argue that the university's race-conscious admission plan is not
necessary to achieve a diverse student body because it admits ... so few
minorities," Kennedy told Rein. "Then let's assume that it resulted in the
admission of many minorities. Then you'd come back and say, oh, well, this ...
shows that we were probably wrongly excluded. I see an inconsistency here."
Later, turning to U.S. Solicitor General Donald B. Verrilli Jr., who
argued in defense of UT, Kennedy questioned the university's modest
consideration of race.
"I thought that the whole point is that sometimes race has to be a
tie-breaker, and you are saying that it isn't," Kennedy said. "Well, then, we
should just go away. Then we should just say you can't use race, don't worry
about it."
Racial and ethnic considerations don't come into play at all for most
students admitted to UT's undergraduate ranks.
Under state law, any student graduating in the top 10 percent of a high
school in Texas is entitled to automatic admission at any of the more than
three dozen public universities. The law was tweaked in 2009 to give UT more
flexibility in deciding whom to admit, and as a result students must rank even
higher, usually in the top 8 or 9 percent, to qualify for automatic entry to
the Austin flagship.
In recent years, 60 to 80 percent of UT's freshman class has been made up
of automatic admits.
Applicants for the remaining slots undergo what the university calls a
holistic review, with race and ethnicity considered alongside numerous other
factors, such as family circumstances, leadership qualities, special talents,
essays and so forth.
UT's biggest diversity challenge has been black enrollment, which has
hovered around 4 to 5 percent for the undergraduate student body since 1995.
In 2011, 6 percent of freshmen from Texas were black, including 279 who
qualified for automatic admission and 77 who were accepted through the
holistic review.
Some of the more conservative justices pressed Garre to say what
percentage of the student body would constitute a "critical mass" of minority
students needed to achieve UT's diversity goals. Garre declined to provide a
specific number, asserting that the concept included achieving an atmosphere
in which minority students don't feel like spokespersons for their race and in
which a sufficient number of classrooms and the campus as a whole reflect
diversity.
That didn't sit well with Chief Justice Roberts.
"The compelling interest you identify is attaining a critical mass of
minority students at the University of Texas, but you won't tell me what the
critical mass is," Roberts said. "How am I supposed to do the job that our
precedents say I should do?"
The court's more liberal justices challenged Rein's contention that the
court ought to find that UT's consideration of race falls short of the "narrow
tailoring" and other requirements spelled out nine years ago by the high court
in Grutter, the case involving the University of Michigan.
Justice Ruth Bader Ginsburg, noting that UT is careful to avoid quotas
and other unacceptable approaches to race, said, "It seems to me that this
program is certainly no more aggressive than the one in Grutter. It's in fact
more modest."
Justice Sonia Sotomayor put it more bluntly to Rein: "So you don't want
to overrule Grutter, you just want to gut it."
Fisher, who graduated from Louisiana State University in May and now
works as a financial analyst in Austin, claims that she would have been
accepted to UT but for her race.
UT says she would have been denied admission even if race were not
considered.
Steven Schwinn, who teaches at John Marshall Law School in Chicago, wrote
in an analysis for the American Bar Association that the court is perhaps most
likely to reverse the 5th Circuit Court's decision to uphold UT's program. The
reason would be that the court did not apply "strict scrutiny" to UT's
admission criteria with sufficient rigor, he wrote.
But other outcomes -- such as allowing UT's policy to stand, sending the
case to the circuit court for further review and overturning Grutter
altogether -- are also possible.
Ginsburg and Sotomayor sought Wednesday to advance yet another
possibility -- namely, a finding that Fisher lacks standing to be in court at
all. They questioned what sort of legal injury she suffered inasmuch as she
has already graduated from college.
Justice Antonin Scalia had an answer for that: "She had to pay an
admissions fee for a process in which she was not treated fairly."
UT President Bill Powers, who attended Wednesday's arguments, said he was
pleased with how things went. But Powers, a former UT law dean who has
participated in oral arguments himself, although not at the Supreme Court,
added: "It's hard to read tea leaves from oral arguments."
The Supreme Court is expected to rule in the case Fisher v. University of
Texas, No. 11-345, in the spring or summer of 2013.
