Affirmative action in higher education appeared to take a potentially lethal hit on Wednesday, as the U.S. Supreme Court heard arguments testing the constitutionality of a race-conscious admission program at the University of Texas, Austin.

The high court has twice upheld such programs over the past three decades. In 1978 and again in 2003, the court ruled that state colleges and universities may consider race and ethnicity as one of many factors in college admissions, as long as there are no quotas. But since then, the composition of the court has changed significantly, and at Wednesday's argument, a court majority seemed poised to reverse or severely cut back its earlier decisions.

The case before the court concerns the admissions program at the University of Texas, where 75 percent of applicants are automatically admitted based on high school class rank. Texas law guarantees that students who graduate in the top 10 percent of their class get in. The other 25 percent, those not in the top 10 percent, are admitted under a system that includes grades, board scores, essays and other factors like leadership, awards, community activities, economic circumstances and race.


On the steps of the Supreme Court, University of Texas President Bill Powers defended the university's program, stating that no university or employer would fill all of its available slots based on grades alone. That would likely leave out individuals who have excelled in specialized areas, served as student body president or won the state math contest, he argued. Such results, said Powers, would be senseless.

Abigail Fisher, a white student who did not make the cut at the university, contends that the university's consideration of race is unconstitutional. She said she was taught from when she was very young that "any kind of discrimination was wrong" and questions the example the university sets by considering race as a factor in admissions.

Sitting in the courtroom on Wednesday was the author of the 2003 decision on affirmative action, Justice Sandra Day O'Connor. But the retired justice was in the audience, replaced on the bench by Justice Samuel Alito, a dedicated foe of affirmative action. Also sitting in the audience was the widow of Justice Thurgood Marshall, the man who led the legal fight against school segregation.


On the bench were four justices who have records firmly opposed to affirmative action. A fifth justice, Anthony Kennedy, voiced strong skepticism about the university's program. In the past, Kennedy has said he sees the need for diversity in education, but has never seen an affirmative action program that he believes passes constitutional muster. And on Wednesday, he seemed to suggest that the University of Texas would fare no better.

Bert Rein, the lawyer representing Fisher, told the justices that it is not necessary for them to overrule their past decisions on affirmative action. After hearing his argument, however, Justice Sonia Sotomayor shot back sarcastically that Rein did not want the court to overrule the past decisions, "you just want us to gut them."

Justice Stephen Breyer noted that two lower courts had found the University of Texas program did meet the criteria set out previously by the Supreme Court. The program has no quotas, each applicant is considered individually, race is not the predominant factor, and the program is time limited.

The plan is still unconstitutional, replied Rein, because there is no definition of what constitutes a "critical mass" of minority students — the diversity goal the university is seeking to achieve.

To that, Sotomayor replied, Rein would seem to be requiring the university to set a quota, something the court has repeatedly said should not be done.

Sotomayor, who has said openly she never would have been admitted to Princeton based solely on her academic scores, continued to press Rein. She noted that without the affirmative action program, African-American enrollment at the University of Texas was 4 percent, and now, with the affirmative action program, it is 6 percent. "The 2 percent increase is enough for you, even though the state population is 12 percent?" she asked.

When Rein said that the state's demographics, now more than 50 percent minority, are irrelevant, Sotomayor again shot back: "You can't seriously suggest that ..."

Questioning By Conservatives

The court's conservatives, largely silent during Rein's argument, sprung to life when the lawyer for the university, Gregory Garre, began.

Chief Justice John Roberts pushed Garre on the question of checking a race and ethnicity box, much like the ones on U.S. census forms. Roberts noted that though the University of Texas claims race is only one factor in admission, it is the only factor on the cover of an applicant's file. He also asked Garre which box should be checked if a person is one-fourth or even one-eighth Hispanic. Justice Antonin Scalia chimed in: How about someone who is one-thirty-second Hispanic?

Scalia moved on to say that the university gets plenty of diversity with the 10 percent plan.

"That's absolutely wrong," replied Garre. Yes, Garre agreed, the 10 percent plan helps with minority admissions, but not enough. Prior to enactment of the affirmative action plan, he said, minority enrollment was stagnant. Furthermore, most of the minorities come from schools that are mainly of one race or ethnicity.

Justice Alito jumped in at that point, asking if the university views the 10 percent plan as "faulty because it does not admit enough minorities from privileged backgrounds ... they deserve a leg up over students from an absolutely average background?"

Justice Kennedy also seized on this theme, declaring, "So what you're saying is that what counts is race, above all."

Obama Administration's Stand

Solicitor General Donald Verrilli was last to the lectern, representing the Obama administration in support of the affirmative action program at the University of Texas.

Grilled by the court's conservatives, Verrilli said that race can be a factor in admission under the University of Texas system, but it is "not a mechanical factor." It is only used to promote diversity in a larger sense: for example, the Hispanic student who has studied classical Greek, or the African-American student who is a devotee of fencing, or a white student who was class president at a mainly minority school.

Chief Justice Roberts, returning to the question of what constitutes a critical mass of minority students, asked: When is enough, enough?

Verrilli said the school looks at many factors — information about classroom diversity, retention and graduation rates, and information about racial incidents on campus, among other things. The school, however, cannot measure success by numbers, he said, because that would be a quota.

"We should probably stop calling it critical mass then," said Justice Scalia, noting that mass suggests numbers.

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