University Affirmative Action Questioned at Supreme Court

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Attorney Bert Rein speaks to the media while standing with plaintiff Abigail Fisher after the Supreme Court heard arguments in her case on Oct. 10, 2012 in Washington.

Photographer: Mark Wilson/Getty Images

Members of the U.S. Supreme Court clashed over the value of university affirmative action policies, and pivotal Justice Anthony Kennedy raised the prospect that the court might put off issuing a broad ruling.

In a sometimes-heated argument Wednesday that ran more than 30 minutes beyond its allotted hour, the court’s liberal wing defended the University of Texas program as a means of fostering diversity. Members of the court’s conservative majority questioned whether racial preferences were warranted. Justice Antonin Scalia said that perhaps the university “ought to have fewer” minority students.

“One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas,” Scalia said. “They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.”

Opponents of racial preferences are hoping the case will put strict new limits on affirmative action programs. Kennedy, however, raised the prospect of returning the case to a federal trial court so the university can try to prove it met a test the court laid out in 2013.

“They weren’t given the chance to add additional evidence in order to meet that standard,” Kennedy told the lawyer for Abigail Fisher, the rejected white applicant challenging the policy. He said there are things “that we should know but we don’t know.”

The court will rule in the case by June.

Guaranteed Slots

Texas has a unique hybrid admissions policy. The state’s Top Ten Percent Law, enacted in 1997 in response to a court decision, requires the school to admit three-quarters of its freshman class each year solely on the basis of high school class rank.

That system, while race-neutral on the surface, ensures a significant number of minorities because it guarantees slots to students at predominantly Hispanic and black schools.

The university directly considers race as a factor only in admitting the rest of the class, adding what Texas says is an additional component of diversity. The university’s current freshman class is 22 percent Hispanic and less than 5 percent black.

Three longstanding critics of racial preferences -- Chief Justice John Roberts and Justices Samuel Alito and Scalia -- signaled they were poised to vote to invalidate the Texas program.

Scalia pointed to arguments that affirmative action harms racial minorities and that some would do better at “slower-track” schools.

“I’m just not impressed by the fact that the University of Texas may have fewer” minority students, he said. “Maybe it ought to have fewer.”

‘Something Deficient’

Alito said Texas hadn’t shown how students admitted through affirmative action added an element of diversity that wasn’t already provided by the minority students accepted under the Top Ten Percent program.

“One of the things I find troubling about your argument is the suggestion that there is something deficient about the African-American students and the Hispanic students who are admitted under the Top Ten Percent plan,” Alito said. He said the university was engaging in “a terrible stereotyping.”

Justice Sonia Sotomayor said the university produced studies showing that, during a period when racial preferences were banned, minority students complained they felt isolated and experienced stereotyping. She said black and Hispanic enrollment at the university rose once the admissions office resumed considering race after a 2003 Supreme Court ruling.

“What more do they need?” she asked.

Fisher says she suffered unconstitutional discrimination when she was rejected by the school in 2008. Fisher has since graduated from Louisiana State University and now works as a financial analyst in Austin.

Compromise in 2013

The high court is considering the case for a second time. In 2013 the court reached what Justice Stephen Breyer characterized Wednesday as a compromise, sending the case back to a federal appeals court for closer scrutiny.

The 7-1 Supreme Court ruling said universities must prove that their means of attaining diversity meet a demanding constitutional test known as “strict scrutiny.” Writing for the court, Kennedy said universities must show that “available, workable race-neutral alternatives do not suffice.”

The appeals court then upheld the Texas program a second time. Along the way, it rejected the university’s suggestion that the case first go back to a federal trial court to look more closely at how the program works in practice.

In Tuesday’s hearing, Kennedy hinted he was frustrated by that decision, saying the high court would benefit from “additional fact-finding.”

“We’re just arguing the same case,” Kennedy said. “It’s as if nothing had happened.”

Additional Evidence

The outcome at the high court may hinge on Kennedy’s perception of what additional evidence the university might produce should the case return to the trial court level. He and other justices repeatedly pressed that point with the university’s lawyer, Gregory Garre.

One wrinkle in the case is the absence of Justice Elena Kagan, who isn’t taking part because she played a role in the litigation as a lawyer in President Barack Obama’s administration. That leaves the court with only eight participating justices, potentially complicating the effort to put together a five-vote majority.

The case is Fisher v. University of Texas at Austin, 14-981.

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