although he has endorsed the idea that racial diversity serves a compelling
Justice Kennedy left much room for interpretation last week, but his questions did not give defenders of racial preferences much comfort.
As Mr. Garre explained that the university sought to use the race-conscious program to ensure a diversity of minority students from different socioeconomic backgrounds, Justice Kennedy interrupted.
"So what you're saying is that what counts is race above all," the justice said. "You want underprivileged of a certain race and privileged of a certain race. So, that's race."
Justice Kennedy also questioned whether the university's use of race, which has had modest effects, was worth the constitutional "hurt" and "injury" it causes.
With Justice Elena Kagan recused--she was U.S. Solicitor General at the time the federal government filed a brief at the appellate court level--only eight justices are participating in the case. A 4-4 tie would uphold, without setting a national precedent, a 2011 ruling by the U.S. Court of Appeals for the 5th Circuit in New Orleans, that upheld the race-conscious Texas program.
Lawyers for Ms. Fisher, now a 22-year-old graduate of Louisiana State University in Baton Rouge, contend that she would have been admitted to the University of Texas but for her race, a claim that the university disputes. The plan that admits the top 10 percent is a workable, race-neutral alternative, her lawyers say, and thus the university need not resort to race-conscious affirmative action.
"Race should have been a last resort," Bert W. Rein, a lawyer for Ms. Fisher, told the justices. "It was a first resort."
Mr. Rein faced pushback from the court's three participating liberals, who suggested the Texas plan met the requirements of the high court's 2003 decision in Grutter v. Bollinger, which upheld the limited use of race in an individualized admissions process at the University of Michigan Law School.
Justice Stephen G. Breyer referenced the Grutter decision's proposition that 25 years from that point, or 2028, the use of racial preferences "will no longer be necessary" to further the interest of diversity in education.
"Are you asking us to overrule Grutter?" Justice Breyer asked Mr. Rein. "I know that time flies, but only nine of those years have passed."
Mr. Rein stressed that he was not seeking to overturn the 2003 decision, only to have the court clarify that the Texas program does not meet its strictures.
Justice Sonia Sotomayor said to him, "You don't want to overrule Grutter, you just want to gut it."
Justice Ruth Bader Ginsburg noted that the race-neutral option--the "10 percent" plan--results in greater racial diversity by virtue of patterns of segregation in the state's high schools. To her, the university's race-conscious addition to that plan is "more modest" even than the Michigan law school's plan upheld in Grutter.
Mr. Garre, meanwhile, defended the race-conscious UT plan against relentless questioning from conservative justices, including over the university's desire to use its race-conscious plan to boost the enrollment of minorities from higher socioeconomic brackets.
"Taking the top 10 percent of a racially identifiable high school may get you diversity that looks OK on paper, but it doesn't guarantee you diversity that produces educational benefits on campus," said Mr. Garre, who was solicitor general in the second term of President George W. Bush.
U.S. Solicitor General Donald B. Verrilli, supporting the university on behalf of President Barack Obama's administration, said he understood UT-Austin's interest was not in granting a preference for the privileged "but to make individualized decisions about applicants who will directly further the educational mission."
"They will look for individuals who will play against racial stereotypes just by what they bring," Mr. Verrilli added, such as "the African-American fencer" and "the Hispanic who has mastered classical Greek."
Justice O'Connor has no vote in the Fisher case, of course. But she has expressed muted, though public, displeasure with how the court has "dismantled" her legacy in such areas as campaign finance and race, such as the 2007 decision in Parents Involved in Community Schools v. Seattle School District, which sharply restricted the way K-12 schools could take race into account.
"What would you feel?" the retired justice said at a 2010 symposium at the College of William and Mary in Williamsburg, Va., as reported in USA Today. "If you think you've been helpful and then it's dismantled, you think, 'Oh, dear.' But life goes on. It's not always positive."
The court will decide the Fisher case by June.
Distributed by MCT Information Services
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