By Sam Baker - 10/10/12 05:09 PM EDT
The Supreme Court signaled Wednesday that it could try to rein in affirmative action, following an intense assault on the idea from the court’s conservative justices.
The court heard oral arguments in a case challenging the admissions process at the University of Texas. A white student who was rejected from the school sued, saying the admissions process was unfair because it gives partial preference to minority students.
The swing vote in the case most likely belongs to Justice Anthony Kennedy. He has supported the limited use of affirmative action in past cases, but the questioning Thursday centered largely around whether there are any limits to the practice.
Kennedy asked few questions during Thursday’s oral arguments, but he showed some skepticism about the idea that race is just one factor in an otherwise “holistic” admissions process.
“What you're saying is that what counts is race, above all,” Kennedy said to Greg Garre, the lawyer representing UT.
The court heard oral arguments Thursday in Fisher v. University of Texas. Abigail Fisher, a white student who was rejected from the school, charged that its admissions process is unfair because it gives partial preference to minority students.
While the Rev. Jesse Jackson led a protest on the courthouse steps, highlighting race’s deep emotional resonance, arguments inside the court focused on the admissions process and how it squares with the court’s precedents upholding some level of affirmative action.
The court ruled in 2003 that race can be used in college admissions only if it is part of a wider context that also considers a range of other factors. The use of race in Texas is consistent with that standard, raising questions about why the court even took the case if not to at least partially chip away at its earlier ruling.
Both sides argued that the court does not need to overturn the 2003 case, Grutter v. Bollinger. But the court’s liberal justices said the two policies seem highly similar.
“You don’t want to overrule it, you just want to gut it,” Justice Sonia Sotomayor told Bert Rein, the attorney representing Fisher.
UT school fills most of its openings by automatically admitting students in roughly the top 10 percent of their high school classes. The remaining spots are assigned based on a complicated process that includes race as one factor.
“It seems to me that this program is no more aggressive than the one in Grutter. It is in fact more moderate,” Justice Ruth Bader Ginsburg said.
But the conservative justices pressed Garre to define a point at which affirmative action would no longer be needed. They returned several times to the court’s precedent, which says schools have a right to ensure a “critical mass” of minority students in the service of a robust educational experience.
The court has also said that schools can’t use racial quotas. The conservative justices wondered how they could decide whether a particular affirmative-action policy goes beyond a “critical mass” of minority students when that term has no fixed definition.
“So, what, you conduct a survey and ask students if they feel racially isolated? And that’s the basis for our constitutional determination?” asked Chief Justice John Roberts.
Solicitor General Donald Verrilli, arguing for 10 minutes on behalf of the university, made a clear play for Kennedy’s vote. He emphasized that the university makes its admissions decisions by scrutinizing each applicant on a range of issues, and quoting from a Kennedy opinion in an earlier affirmative-action case.
“I think it is important, Your Honors, not government, but to the country, that our just to the universities have the flexibility to shape their environments and their educational experience to make a reality of the principle that Justice Kennedy identified in Parents Involved, 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,” Verrilli said.
The short speech was similar to a pitch he made near the end of the court’s arguments earlier this year, which was also aimed — unsuccessfully, as it turned out — at Kennedy’s interest in balancing individualism with encouraging responsible citizenship.
The court’s other conservative justices, though, pressed Verrilli on largely the same points as Garre, questioning why race has any role in college admissions — especially in a system where the top-10-percent policy captures a large number of minority students.
One of the difficult question for Garre came from Justice Samuel Alito. He replaced former Justice Sandra Day O’Connor, who wrote the 5-4 decision that could be partially ¬— or perhaps even wholly — overturned by the Texas case.
Alito said he understood affirmative action to be aimed primarily at giving a leg up to socioeconomically disadvantaged students. But Texas’s version of affirmative action weights race separately from income.
Alito pressed the point while questioning Garre.
If you have an applicant whose parents are — let's say one of them is a partner in your law firm in Texas, the other one is another corporate lawyer. They have income that puts them in the top 1 percent of earners in the country, and the parents both have graduate degrees,” Alito said. “They deserve a leg-up against, let's say, an Asian or a white applicant whose parents are absolutely average in terms of education and income?”
Updated at 3:42 p.m.