Supreme Court hears argument on Affirmative Action in Education

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Three of the court’s four most conservative justices, Chief Justice John Roberts, and Justices Antonin Scalia and Samuel Alito, were clearly hostile to the Texas plan. Justice Clarence Thomas did not speak from the bench Wednesday, as is his custom, but he’s previously indicated opposition to such programs.

The court’s liberal wing was more receptive to the University of Texas program and to the idea of deferring to the judgment of educators. However, the court’s liberals are down one for the Texas case: Justice Elena Kagan recused herself because as solicitor general she approved a brief backing the university.

If the five conservative justices vote together, they could nix the Texas program and effectively restructure — or even end — affirmative action in higher education. If not, the case is unlikely to set any precedent, though the court could still kill the Texas system.

A tie, 4-4, vote would let stand a lower court ruling that left the program in place.

 From one generation to the next, the fight for equal access to education continues. Pictured here Rev. Al Sharpton and Rev. Jesse Jackson on the steps of the U.S. Supreme Court regarding Affirmative Action. Photo: www.NationalActionNetwork.net

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Kennedy sounded largely skeptical about the Texas program, which uses race to boost the admission of African-Americans and Latinos. However, he didn’t come down squarely for or against the program and he gave no indication he is inclined to join a ruling that would forbid all use of race in college admissions at state-run schools.

Justice Sonia Sotomayor, the court’s only Hispanic, emerged as the most vocal defender of the Texas program among the justices.

Former Justice Sandra Day O’Connor, author of the court’s ruling nearly a decade ago that upheld affirmative action, was in the courtroom audience for most of Wednesday’s arguments on the Texas case.

In the 2003 case, Grutter v. Bollinger, O’Connor upheld a University of Michigan Law School affirmative action plan but suggested such programs would no longer be necessary in 25 years.

“I know that time flies, but I think only nine of those years have passed,” Justice Stephen Breyer quipped at the outset of the arguments, suggesting that conservatives are intent on overturning Grutter.

Alito, who replaced O’Connor in 2006, offered some of the strongest criticism of the Texas program. He seemed particularly disturbed that it admits well-to-do minorities who don’t gain admission through a Texas law that grants a place at the university to everyone who graduates in the top 10 percent of a public high school.

After the lawyer for the university, Greg Garre, said the program admits minorities who “succeed in an integrated environment” to “break down racial barriers,” Alito jumped in. “I thought the whole point of affirmative action was to help students coming from underprivileged backgrounds,” he said. He asked if the child of an African-American or Latino professional deserves a “leg up” over an Asian student “of average background.”

Garre said the point of the program is to ensure that minorities of different backgrounds are part of the student body.

“What you’re saying is race counts above all?” Kennedy chimed in.

”What we want is different experiences … that are going to come on campus,” Garre replied.

Kennedy, who dissented in Grutter but wrote an opinion open to some use of race in education, countered: “You want underprivileged of a certain race and privileged of a certain race. So, that’s race.”

“No…it’s not race. It’s just the opposite,” Garre insisted.

Roberts questioned how the racial statistics and preferences work in an era when more and more Americans are of mixed racial or ethnic background. “Would it violate the honor code for a person who’s one-eighth Hispanic” to list himself as a Latino? the chief justice asked.

The case currently before the court was brought by Texan Abigail Fisher. AP photo

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Garre said the university leaves it to students to indicate their ethnic or racial background, or to decline to do so.

Much of the discussion turned on whether Texas had achieved a “critical mass” of minority students, a term that comes from the Grutter ruling.

Neither Garre nor the lawyer challenging Texas’s program, Bert Rein, seemed eager to define the term.

Garre said a critical mass would allow racial minorities to feel less isolated and more able to speak out, but he said it didn’t mean matching the number of minorities in the Texas population.

After Rein suggested that adequate diversity had been achieved at the university, Sotomayor asked him what percentage would be enough.

“It’s not our burden to establish the number,” he said.

However, Rein later said the university’s plan was unconstitutional because it lacked any mechanism to assess and control its impact. “You can’t tailor to the unknown. If you have no range of evaluation, if you have no understanding of what critical mass means, you can’t tailor to it,” he said.

The Obama administration has asked the court to uphold the Texas plan.

Republican presidential nominee Mitt Romney’s campaign did not respond to several requests from POLITICO for comment on the Supreme Court case and on the candidate’s views on affirmative action.

Solicitor General Donald Verrilli, who argued briefly before the justices, also declined to say how many underrepresented minorities were enough to create “critical mass.”
”I agree with my friend that critical mass is not a number. I think it would be very ill-advised to suggest that it is numerical,” Verrilli said.

“I’m hearing a lot about what it is not. I’d like to know what it is,” Roberts said.

“Maybe we should stop calling it critical mass,” Scalia said. “Call it a cloud or something.”

Sotomayor and even Kennedy suggested that universities were caught in a kind of Catch-22: If they give too much weight to race, they’d be accused of unfairness, and if they give only a little weight, the program would be deemed so minor as to be unworthy of harming applicants who were rejected.

The case before the court was brought by Abigail Fisher, a white student who was denied admission in 2008. She attended Louisiana State University and recently graduated.

There remains an outside chance the court might not resolve the case on the merits. The court’s liberal justices suggested Fisher might not have standing to bring her lawsuit because she’s no longer seeking admission to the school and asked for no specific damages beyond the $100 application fee. The court’s conservatives didn’t seem to give much weight to that argument.