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Abigail Fisher, shown Wednesday outside the Supreme Court, alleged that she was denied entry to her dream school because she is white. Fisher, who had an SAT score of 1180 out of 1600 and a 3.59 GPA, graduated from LSU in May.

Susan Walsh, Associated Press

As university officials watched for clues to how the court may rule, Neo Moneri and Jheanelle Wilkins rallied in Washingto

Susan Walsh, Associated Press

Justices question college's use of affirmative action

  • Article by: ROBERT BARNES
  • Washington Post
  • October 11, 2012 - 12:22 AM

A deeply divided Supreme Court on Wednesday squared off over the future of affirmative action in college admissions, with liberals defending a university's right to assemble racially diverse student bodies, and conservatives worrying about the constitutional rights of those who are denied admission because of their race.

It is one of the court's most important cases of the new term, with potentially landmark consequences for the use of racial preferences and the debate over crafting the nation's institutions of higher learning to reflect the nation's diversity.

At the end of a lengthy oral argument over admissions policies at the University of Texas, it seemed highly unlikely that a majority of the justices would announce a ringing endorsement of racial preferences.

But it also was unclear whether there were five votes willing to bar universities from considering race in their admissions process. That would renounce the court's most recent affirmative action decision in 2003 that universities could use race in a limited way to achieve a "critical mass" of diversity that benefits all students.

That decision will likely come down to Justice Anthony Kennedy. The justice has agreed in theory that campus diversity is the kind of compelling government interest that can sometimes license an otherwise forbidden consideration of race. But he dissented in that 2003 case, Grutter vs. Bollinger, and has never voted to uphold an affirmative action plan that has come before the court for review. His questions on Wednesday indicated discomfort with UT's use of race, but were far short of the condemnations that came from the court's other conservatives.

The University of Texas at Austin admits about 75 percent of its freshman based on their graduation rankings from Texas high schools. For the remaining students, it uses a "holistic" evaluation that includes race as one of many factors. A white applicant, Abigail Fisher, claims those attempts to boost the number of blacks and Hispanic students cost her a spot in the freshman class of 2008.

The court since 1978 has recognized that promoting diversity on the nation's campuses allows universities to give some consideration to an applicant's race, which normally would be unconstitutional.

A changed court

What has changed, though, since the court last rule on affirmative action in 2003 is the court's composition. The 5-4 Grutter decision was written by Justice Sandra Day O'Connor, who watched the arguments from the front row. Her replacement, Justice Samuel Alito, has proven to be a fierce opponent of race-specific government policies.

Fisher's attorney, Bert Rein, said UT had failed to narrowly tailor its examination of race and said it had not shown the necessity for racial considerations that Grutter demanded.

UT, he said, had become one of the nation's most diverse universities because of the policy of admitting the top 10 percent of each Texas high school, which yields a diverse crop of students because the schools often are dominated by one race. In filling the rest of its class, "race should have been a last resort," Rein said. Instead, "it was a first resort."

Justice Sonia Sotomayor was Rein's most relentless questioner. "So you don't want to overrule Grutter, you just want to gut it," she said.

Justice Ruth Bader Ginsburg said the use of race by UT, which considers it as only one of many factors along with essays, leadership qualities, work experience and other characteristics, was "more modest" than what the court approved from the University of Michigan Law School in Grutter.

When Washington lawyer Gregory Garre rose to defend UT's plan, he was pounded by conservatives, leading with Chief Justice John Roberts.

Roberts, who in past opinions has decried the "sordid business" of categorizing Americans by race, asked Garre what racial box someone who was one-quarter Hispanic, or one-eighth Hispanic, should check. He seemed unsatisfied by Garre's answer that all racial classifications are selected by the applicant. He suggested the university was downplaying its reliance on race, saying it was the only characteristic noted on the front of an applicant's file.

And Roberts expressed frustration with how the court was supposed to come up with a standard for the "critical mass" of diversity that Grutter said justified the use of race.

'Diversity within diversity'

Alito was scornful of UT's argument that the holistic approach allowed it to achieve "diversity within diversity." UT in its brief used as an example its desire to admit the black or Hispanic child of parents with professional careers who had not made the top 10 percent in a competitive high school. "I thought the whole purpose of affirmative action was to help the disadvantaged," Alito said.

Garre said the university recruits minority members from all walks of life, prompting Kennedy to say: "What you're saying is race counts above all."

Garre also said Fisher should not be able to bring the suit because it says she did not have the qualifications to make it into the 2008 freshman class regardless of her race.

The case was heard before only eight justices. Justice Elena Kagan, who worked on the case as solicitor general, recused herself. Her successor, Donald Verrilli Jr., told the court that making sure the nation's top universities produce diverse leaders is a "vital interest" of the United States.

The Supreme Court has four basic options. It could decline to decide the central issue if it credits the university's argument that Fisher did not suffer the sort of injury that gives a plaintiff standing to sue.

It could uphold the Texas program as constitutional. It could say that race-conscious admissions may not be used where race-neutral ones have produced substantial diversity.

Or it could say race may not be used in admissions decisions at all. A decision forbidding the use of race at public universities would almost certainly mean that it would be barred at most private ones as well.

If the eight justices deadlock on a decision, UT's policy would remain in place without setting a precedent. A decision will be issued next year.

The New York Times contributed to this report.

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