Conservatives on the U.S. Supreme Court came out aggressively today against the race-conscious admissions plan at the University of Texas at Austin, while liberals raised jurisdictional issues and defended affirmative action.
Somewhere in the middle was Justice Anthony M. Kennedy, who asked several questions that appeared skeptical of the plan.
Kennedy seemed to be agreeing with Bert W. Rein, the Washington lawyer representing the rejected white applicant who is challenging the Texas plan, when he said, “Are you saying that you shouldn’t impose this hurt, or this injury, generally, for so little benefit?”
Later, he pressed Gregory G. Garre, the lawyer defending the university, about whether a stated desire to admit racial minorities of diverse socioeconomic levels meant that race was the central factor.
“What you’re saying is that what counts is race above all,” Kennedy said to Garre during the arguments in Fisher v. University of Texas at Austin (Case No. 11-345). “You want underprivileged of a certain race and privileged of a certain race. So that’s race.”
The court’s most conservative members of the court were even more direct.
“What is the critical mass of African-Americans and Hispanics that you are working toward?” Chief Justice John G. Roberts Jr. skeptically asked Garre, who said the university had no fixed goals for its “holistic review” plan, which sometimes considers race for spots in the freshman class not filled by the state’s Top Ten Percent plan. That plan guarantees admission to students who finish at the top of their high school classes, and fills 75 percent of the entering class.
Justice Samuel A. Alito Jr. criticized the university’s desire to admit African-American students from suburban schools who missed the Ten Percent Plan cutoff.
“I though the whole purpose of affirmative action was to help students who come from underprivileged backgrounds,” Alito said. “But you make a very different argument that I don’t think I’ve ever seen before.”
Alito questioned why Texas seems to want to give a “leg up” to African-American and Hispanic applicants of “privileged backgrounds,” against “let’s say, an Asian or a white applicant whose parents are absolutely average in terms of education and income.”
Garre said race-neutral alternatives like the Top Ten Percent plan “may get you diversity that looks okay on paper, but it doesn’t guarantee you diversity that produces educational benefits on campus.”
U.S. Solicitor General Donald B. Verrilli Jr., representing President Barack Obama’s administration, also defended the Texas plan and the continued use of affirmative action by colleges nationwide.
“I think it is important, your honors, not just to the government, but to the country, that our universities have the flexibility to shape their environments and their educational experience to make a reality of the principle ... that our strength comes from people of different races, different creeds, different cultures, uniting in a commitment to freedom, and to more a perfect union.”
The court’s participating liberal members—Justice Elena Kagan is recused—suggested the Texas plan met the requirements of the 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.
“Are you asking us to overrule Grutter?” Justice Stephen G. Breyer asked Rein, as he referenced that decision’s suggestion that affirmative action in college admissions would be unnecessary within 25 years of 2003. “I know that time flies, but only nine of those years have passed.”
Rein said Abigail Fisher, the white student who was denied admission under the Texas plan in 2008, was not arguing for Grutter to be overruled. Rather, the Texas plan did not meet that decision’s test for a narrowly tailored use of race only when race-neutral alternatives had been tried.
“Race should have been a last resort,” Rein said. “It was a first resort.”
Justice Ruth Bader Ginsburg said the Texas plan was “certainly no more aggressive” in its use of race “than the one in Grutter. It’s more, in fact, more modest.”
Because a lower court upheld the Texas plan, the court’s four conservatives would have to attract at least one more vote, most likely Kennedy’s, to strike down the plan. If Kennedy were to join with Ginsburg, Breyer, and Sonia Sotomayor, a 4-4 tie would uphold the lower court with no national precedent.
Justices Ginsburg and Sotomayor raised concerns about whether Fisher had proper legal standing and related jurisdictional issues. Because she is no longer seeking admission to UT-Austin, Fisher is now seeking a return of her $100 admissions fee, which her lawyer said was enough to keep her case alive. The jurisdictional issues were raised when Fisher appealed to the high court, so they came as no surprise to the justices. And conservative justices such as Antonin Scalia suggested that there were no procedural bars to the court deciding the merits of the case.
“She had to pay and admissions for for a process in which she was not treated fairly,” he said.
Present at Wednesday’s arguments were Fisher, a soft-spoken 22-year-old who just graduated from Louisiana State University, as well as William Powers, the president of the UT-Austin campus.
About 15 minutes into the argument, retired Justice Sandra Day O’Connor arrived to take a prominent seat in the court’s VIP section. She listened intently as the justices debated the fate of the 2003 Grutter decision, of which she was the author.
Photo: Abigail Fisher, right, who sued the University of Texas, walks outside the Supreme Court in Washington on Wednesday. The Supreme Court is taking up a challenge to a University of Texas program that considers race in some college admissions. The case could produce new limits on affirmative action at universities, or roll it back entirely. (Susan Walsh/AP)
A version of this news article first appeared in The School Law Blog.