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.
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