Top Court Challenges Affirmative Action Program

Supremes Seem Skeptical About College Preferences

By Reuters

Published October 10, 2012.

U.S. Supreme Court justices on Wednesday vigorously challenged a University of Texas admissions program that favors some African-American and Hispanic applicants in a case that could determine how universities use affirmative action at campuses nationwide.

The legal battle is the most closely watched case of the court’s current term, striking at the heart of two defining American characteristics - race and opportunity. The country’s racial makeup has also changed significantly over time, with racial and ethnic minorities making up more than half of the children born in the United States for the first time this year, according to government data.

The University of Texas and its supporters contend that universities must have the flexibility to consider race to ensure diversity. Opponents say it is time to eliminate racial preferences, which they say are unconstitutional.

In Wednesday’s arguments, members of the court’s conservative wing pressed a lawyer for the university on the goals of affirmative action and whether universities would ever be able to stop using race in their admissions decisions.

Some of the liberal justices suggested the court should not overturn its prior rulings.

Justice Sonia Sotomayor summed up the central issue facing the court: “When do we stop deferring to the university’s judgment that (considering) race is still necessary?” she asked. “That’s the bottom line of this case.”

The case involves Abigail Fisher, a white student who was denied admission by the University of Texas at Austin in 2008. Fisher sued the same year, claiming that racial minorities with worse credentials were accepted ahead of her. She argued that the school’s use of race in admissions violated the U.S. Constitution’s guarantee of equal protection. The university countered that it needed the flexibility to consider race as one of many factors to build a “critical mass” of underrepresented minorities.

‘WHERE IS THE END POINT?’

Chief Justice John Roberts pressed university lawyer Gregory Garre on how judges would know when UT had achieved its desired level of diversity: “When will I know that you’ve reached a critical mass?”



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