Affirmative action in college admissions--and by extension the
use of race in K-12 education--came under sharp attack from conservative
members of the U.S. Supreme Court last week in arguments involving a
race-conscious admissions program at the University of Texas at Austin.
"What is the logical end point" to racial preferences, Chief Justice John G. Roberts Jr. wanted to know from the defenders of the policy in Fisher v. University of Texas at Austin (Case No. 11-345).
"What is the critical mass of African-Americans and Hispanics at the university that you are working toward?" he asked.
The chief justice took an annoyed tone as he questioned Gregory G. Garre, a Republican former U.S. solicitor general who was defending the Texas program, about the racial-identification boxes checked by applicants.
"Should someone who is one-quarter Hispanic check the Hispanic box or some different box?" the chief justice asked. "What about one-eighth?"
Mr. Garre said that applicants self-identify their racial or ethnic backgrounds, largely unchecked by the university. That only seemed to make Chief Justice Roberts more exasperated with the university's "holistic review" system for taking race into account when considering applicants who are not admitted through the state's race-neutral "top 10 percent" plan. That plan allows three-quarters of UT-Austin's freshman class to be filled by students who graduate near the top of their high school classes.
The exchange was one of many crackling moments in the Oct. 10 arguments in the Fisher case, which has drawn intense interest from across the public education landscape. Many K-12 groups, including the National School Boards Association and Teach For America, along with the higher education establishment in general, have taken positions in support of the university. A much smaller number of organizations, such as the Asian American Legal Foundation and the Pacific Legal Foundation, are backing Abigail Fisher, the white student from Sugar Land, Texas, who brought the suit.
Ms. Fisher, who challenged her 2008 rejection for admission as a violation of the 14th Amendment's equal-protection clause, was sitting in the packed courtroom, along with the university's president and other top officials.
Also present was retired Justice Sandra Day O'Connor, who listened intently in the VIP section as her legacy of qualified support for racial preferences in education appeared in doubt.
Justice Samuel A. Alito Jr. wondered why the university was seeking to use its race-conscious program to give a "leg up" to African-American and Hispanic applicants of "privileged backgrounds" instead of, "let's say, an Asian or a white applicant whose parents are absolutely average in terms of education and income."
"I thought the whole purpose of affirmative action was to help students who come from underprivileged backgrounds," Justice Alito said.
Troubled by Program
Justice Antonin Scalia also made it clear he was troubled by the Texas program, and Justice Clarence Thomas, though silent as usual at the oral arguments, is a safe bet to vote to strike down the program.
But to do so, the conservatives need the more centrist Justice Anthony M. Kennedy, who has never voted to uphold a racial preference in education,
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