Top Court Challenges Affirmative Action Program

Supremes Seem Skeptical About College Preferences

By Reuters

Published October 10, 2012.
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The Texas case has drawn more than 90 friend-of-the-court briefs from scores of academic institutions, think tanks and public interest groups, most in support of Texas.

The court’s Public Information Office said people began lining up for spectator seats from 6 p.m. on Tuesday and waited overnight. More than 80 reporters had sought seats.

The court has changed since 2003. Justice Sandra Day O’Connor, who wrote the University of Michigan decision, retired in 2006 and has been replaced by the more conservative Alito. O’Connor watched the arguments in the courtroom on Wednesday.

SECURING RACIAL DIVERSITY ON CAMPUS

The University of Texas fills most of its entering class of freshmen using a policy that grants automatic admission to in-state students in the top 10 percent of their high school class. For the remaining slots it considers an applicant’s race as one of many factors to improve diversity.

Fisher’s claim rests on the legal argument that, under the Equal Protection Clause, universities can use race only if there is no other way to improve diversity. Fisher argues that the top 10 percent law is sufficient for boosting racial diversity.

The 5th U.S. Circuit Court of Appeals rejected her challenge, based on the Supreme Court’s 2003 ruling.

Some of the justices suggested that because Texas considers an applicant’s race for only part of its student body, the Texas program would easily pass the standard set forth in the 2003 case. Ginsburg described the University of Texas’ use of race as “more modest” than the admissions policy in the Michigan case.

“If it’s so few, then what’s the problem?” asked Kennedy, referring to the number of slots the school fills using the race-conscious admissions policy.

But the fact that the gains from the race-based part of the process are so small, compared with the top 10 percent plan, could lead the court to conclude that the university does not need to rely on race at all.

Alito asked Garre how the university’s use of race could “possibly do more than a tiny, tiny amount to increase classroom diversity.”

The hundreds of demonstrators who gathered outside the courthouse on Wednesday overwhelmingly favored keeping the university policy intact. They carried signs saying: “Diversity works,” “Out of many, one America” and “Expand Opportunity.”

Cortney Sanders, a third-year student at the University of Texas and an African American, said: “The University of Texas used to be a school of exclusion, now it is promoting a policy of inclusion … We are many people, but we are one America.”

Only eight justices heard the oral arguments. Justice Elena Kagan, an Obama appointee who would be expected to endorse affirmative action, did not participate. Although she did not specify why she recused herself, she could well have worked on the case in her previous job as U.S. solicitor general.

A 4-4 tie would affirm the lower court decision in favor of Texas. If a majority rejects the Texas program, the overriding question is how broadly it will rule. It could reject only the Texas program or rule that universities can no longer consider race in choosing their students.

The court is expected to issue a decision before the term ends in June.


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