Oct. 10 (Bloomberg) -- Affirmative action came under attack at the U.S. Supreme Court as Chief Justice John Roberts took the lead in questioning whether universities should continue to give special preference to racial minorities.
During arguments today in Washington, the court’s Republican-appointed majority scrutinized the University of Texas’s admissions program, which uses race as a consideration in admitting as much as one quarter of each class.
“What you’re saying is that what counts is race above all,” Justice Anthony Kennedy, the likely swing vote, told the lawyer defending the plan. “You want underprivileged of a certain race and privileged of a certain race.”
At stake are policies that have been a fixture on U.S. campuses since the 1960s. All but a handful of the nation’s selective colleges and professional schools consider race as they seek to ensure a diverse student body. A ruling against Texas would raise new legal questions about those programs -- and perhaps even wipe them out. The court will rule by June.
Roberts, who once described racial classifications as “a sordid business,” signaled he would support a broad ruling. He repeatedly voiced discomfort with the idea of identifying students by racial group.
“Should someone who is one-quarter Hispanic check the Hispanic box or some different box?” he asked.
The Texas case may undermine or overturn a 2003 Supreme Court decision that reaffirmed the right of universities to consider race in admissions as a means of ensuring campus diversity. The court’s composition has changed since then, most notably through the retirement of Justice Sandra Day O’Connor, who wrote the 5-4 ruling.
O’Connor, who was in the audience today, was succeeded by Justice Samuel Alito, a skeptic of racial preferences.
Bert Rein, the lawyer challenging the Texas program on behalf of a rejected white applicant, stopped short of directly asking the court to overturn its 2003 ruling. The logic behind that stance was questioned by Justices Sonia Sotomayor and Stephen Breyer, who said they saw little difference between the Texas policy and the University of Michigan Law School plan upheld in 2003.
The 2003 decision, Grutter v. Bollinger, said colleges and graduate schools could consider race as long as they do so through a broad review of a student’s application and don’t mechanistically award extra points to every minority.
“You don’t want to overrule Grutter,” said Sotomayor, the court’s first Hispanic justice. “You just want to gut it.”
A central question in the Texas case is whether universities can adequately diversify without resorting to racial preferences. The University of Texas admits three-quarters of its freshman class each year on the basis of high school class rank -- the “top 10 percent rule.”
That system, the product of a 1997 state law, ensures a significant number of minorities because it guarantees slots to students at predominantly Hispanic and black schools.
The university considers race only in admitting the rest of the class. Rein today said that’s unnecessary, given the success of the class-rank method.
“Race should have been a last resort,” he argued. “It was a first resort.”
Rein’s client, Abigail Noel Fisher, applied unsuccessfully to Texas in 2008 and later enrolled at Louisiana State University. A graduate of a Houston-area public high school, she says she was passed over by UT in favor of minority classmates with lower grades and fewer extracurricular activities.
Texas has support in the case from some of the nation’s most powerful institutions. Fifty-nine companies -- including Microsoft Corp., Wal-Mart Stores Inc., Gap Inc., General Electric Co., Pfizer Inc., Shell Oil Co. and Viacom Inc. -- filed a brief saying they rely on universities to prepare a racially diverse workforce.
Those corporations are in the unusual position of arguing alongside the Obama administration, which has cast affirmative action as a national security issue. The administration says race-conscious admissions, both at the country’s military academies and at universities with Reserve Officer Training Corps programs, help ensure a diverse officer corps.
“The core of our interest is in ensuring that the nation’s universities produce graduates who are going to be effective citizens and effective leaders in an increasingly diverse society, and effective competitors in diverse global markets,” said U.S. Solicitor General Donald Verrilli, the administration’s top Supreme Court lawyer.
Texas says its program is a model of the type of plan the high court approved in the Grutter ruling. The university’s lawyer, Gregory Garre, said race was “one modest factor among many.”
Garre’s contentions drew support from Justice Ruth Bader Ginsburg, as well as Sotomayor and Breyer.
“This program certainly is no more aggressive than the one in Grutter,” Ginsburg said. “It’s in fact more modest.”
Alito faulted the Texas program for potentially giving a preference to the minority child of two corporate lawyers. The plan helps Hispanics and blacks “who come from privileged backgrounds,” he said.
Justice Elena Kagan isn’t taking part in the case. She was the Obama administration’s top courtroom lawyer when the administration filed a brief at the appeals court level.
Kennedy now stands as the court’s swing vote on racial issues. He dissented in 2003, saying the University of Michigan Law School policy at issue in that case was akin to a quota.
Although Kennedy directed the bulk of his questions at the lawyers defending affirmative action, he also balked at Rein’s contention that Texas’s policy is unconstitutional because it adds only a handful of minority students to the school.
“If it’s so few, then what’s the problem?” Kennedy asked.
The case is Fisher v. University of Texas at Austin, 11-345.
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