Supreme Court skeptical of racial preferences in university admissions

Richard Wolf

WASHINGTON — Exactly halfway to the 25-year goal it set in 2003 for ending affirmative action in college admissions, the Supreme Court served notice Wednesday that its patience is running out.

During oral arguments in a case that threatens the use of racial preferences at the University of Texas-Austin and across the nation, the court's conservative justices said programs that accept students because of their race or ethnicity — rather than high school rankings, test scores, talents and character — must be limited and temporary.

"How does the university know when it has achieved its objective?" Chief Justice John Roberts asked Gregory Garre, the university's lawyer. "At what point does it say, 'OK, the plan has worked?'"

The justices stopped short, however, of urging an end to all affirmative action programs, or even the Texas plan under review. For the second time in three years, in fact, they indicated that they might send the case back for additional fact-finding.

What was clear throughout the 95-minute debate inside a courtroom packed with civil rights leaders, university officials and students, is that the clock is ticking.

Former Justice Sandra Day O'Connor set the timer in 2003, ruling in a Michigan case called Grutter v. Bollinger that affirmative action in college admissions should be unnecessary in 25 years. Roberts, who has taken the lead over the past decade in striking down racial preferences, picked up on that theme.

"Grutter said that we did not expect these sort of programs to be around in 25 years, and that was 12 years ago," he said. "Are we going to hit the deadline? Is this going to be done ... in 12 years?"

The court's liberal justices stood firmly behind the continued use of racial preferences, something the high court upheld in California in 1978 and then Michigan a quarter century later. They argued that the university at least should be able to prove its case at a fact-finding hearing in Texas before the court considers striking down its program.

That left Justice Anthony Kennedy, as usual, as the swing vote. He complained that, more than two years after his 7-1 decision sent the case back to a federal appeals court for closer scrutiny, little had changed.

"We're just arguing the same case," Kennedy groused early in the debate. "It's as if nothing had happened."

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Justice Elena Kagan has recused herself from participating in the case because she worked on it as U.S. solicitor general before being elevated to the Supreme Court in 2010. That likely leaves four votes against racial preferences, three in favor of them — and Kennedy as the justice who can save or strike down affirmative action. Because the university won the last round in Texas, its program would survive on a tie vote.

If the court issues a sweeping decision on the constitutionality of affirmative action, it could affect public universities across the country, as well as private ones that accept federal aid.

“This decision could be a death knell to affirmative action when we are nowhere near racial diversity in higher education," Rev. Al Sharpton, who was inside the court, said afterwards. "It would have a ripple effect in other areas of American life, like diversity efforts in the private sector with contracts and jobs, and the Supreme Court must not allow that to happen."

At times, the debate swung from mundane discussions of admissions data and statistics to the state of race relations in America.

As usual, Justice Antonin Scalia expressed the most controversial opinions. Citing briefs that suggest African Americans may do better at "less advanced" or "slower-track" schools, he said, "­I don't think it stands to reason that it's a good thing for the University of Texas to admit as many blacks as possible."

Garre, the university's lawyer, took umbrage. "I don't think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they're going to inferior schools," he said. "I think what experience shows, at Texas, California and Michigan, is that now is not the time, and this is not the case, to roll back student body diversity in America."

A lesser option for the court would be striking down just the Texas program, which uses race and ethnicity only as final factors to round out each incoming class after first accepting the top-ranked students from all high schools that use such rankings. Justice Samuel Alito said the so-called "top 10%" policy should be sufficient, even if minority students come from segregated neighborhoods.

Members of the American Federation of Teachers rally in support of affirmative action outside of the Supreme Court on Dec. 9, 2015, as the court hears oral arguments in the Fisher v. University of Texas at Austin affirmative action case.

"It's kind of the assumption that if a black student or a Hispanic student is admitted as part of the top 10% plan, it has to be because that student didn't have to compete against very many whites and Asians in the high school class," Alito said. "It's a really pernicious stereotype."

A third option would be to send the case back to the original federal district court, where the university could seek to submit data showing that its racial preferences work and, ultimately, can be ended.

"They weren't given the chance to add additional evidence," Kennedy told Bert Rein, the lawyer for Abigail Fisher, a white student who protested her denial of admission in 2008.

People stand in line hoping to get into the Supreme Court for Wednesday's oral arguments on affirmative action.

Fisher, who ultimately graduated from Louisiana State University rather than her home state's flagship campus, issued a statement. “Like most Americans, I don’t believe students should be treated differently because of their race," she said. ”Hopefully, this case will end racial classifications and preferences at the University of Texas.”

The school's first method of integration — accepting the top students from every high school that uses class rankings — isn't challenged, even though it "trades on the de facto segregation that still exists in Texas" to pull in minorities, the school's Supreme Court brief notes.

What's contested is the second method — a topping-off of each freshman class by focusing on a potpourri of factors, from special talents and extracurricular activities to socioeconomics, race and ethnicity. Those last factors are used to produce what the school calls "diversity within diversity" — a representative mix of minority students, rather than just those from segregated communities with similar backgrounds and experiences.

Guixue Zhou of North Potomac, Md., left, and others protests against racial quotas outside the Supreme Court on Dec. 9, 2015, as the court hears oral arguments in the Fisher v. University of Texas at Austin case.

Alito and Roberts pounced on the need for that so-called "holistic" program, arguing that it has done little to boost the percentage of African Americans on campus or bring diversity down to the classroom level, as the school wants.

"What unique perspective does a minority student bring to a physics class?" Roberts asked.

Justice Sonia Sotomayor said the university's use of race had increased the percentage of minorities at least slightly from 2004 to 2008, by which time 20% of its black students and 15% of Hispanics were admitted through holistic review rather than class rank. Even so, she said, more is needed.

"No matter what it does," Sotomayor said, "it doesn't have enough numbers of black people."

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