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Supreme Court: In affirmative action arguments, conservative bloc seems united

The Supreme Court heard oral arguments Wednesday on an affirmative-action plan at the University of Texas, and Justice Anthony Kennedy, the likely swing vote, appeared skeptical.

By Staff writer / October 10, 2012

People supporting the University of Texas rally outside the Supreme Court in Washington, on Oct. 10.

Susan Walsh/AP

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WASHINGTON

The justices of the US Supreme Court split sharply on Wednesday over whether to approve the use of racial preferences for admission to the University of Texas at Austin.

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As in prior cases dealing with the divisive issue of race and college admissions, liberal members of the high court defended the Texas affirmative-action plan while conservatives were skeptical and sometimes hostile to it.

After an hour and 20 minutes of oral argument, it was not clear precisely how the justices might resolve the case. But it appeared there were five votes on the conservative side of the court to fashion a majority opinion.

At several points during the argument, Justice Anthony Kennedy, considered the most likely swing vote in the case, expressed concern or otherwise questioned arguments supporting the Texas plan.

When Solicitor General Donald Verrilli insisted that the Texas plan might not necessarily involve a racial preference under the school’s holistic selection process, four justices – including Justice Kennedy – pushed back.

“I don’t understand this argument,” he said. “I thought the whole point is that sometimes race has to be a tiebreaker and you are saying that it isn’t.”

Kennedy added: “Well… then we should just say you can’t use race, don’t worry about it.”

The case could become a major legal precedent should the justices impose significant new limits on the use of race in college admissions. Such a ruling would force admissions officers and affirmative-action officials across the country to develop race-neutral methods to fill their class rosters.

The last major test of the issue was in 2003 when the court upheld by a 5-to-4 vote the use of race in admissions to the University of Michigan Law School.

Retired Justice Sandra Day O’Connor, who provided the crucial fifth vote in that case, attended Wednesday’s oral argument, seated with court personnel and lawyers near the front of the courtroom. Meanwhile, on the sidewalk outside the court, scores of demonstrators chanted and cheered in support of affirmative action.

At issue in the case is whether the University of Texas is justified in its use of race as one of many factors in deciding which students to admit to the incoming freshman class.

The school admits 75 percent of its new students under a state law that requires the university to offer places to every student in Texas who graduates in the top 8 to 10 percent of his or her high school class.

Because of segregated housing patterns in the state, the program accounts for a significant level of minority enrollment at the state’s flagship university. School officials sought to fine-tune the racial makeup of the entering class by using a multifactor admissions process that includes consideration of the candidate’s race for the remaining 25 percent of entering freshman.

The case stems from a lawsuit filed by a white student, Abigail Fisher, who was denied admission.

Ms. Fisher charged that less qualified black and Latino candidates were admitted in violation of her constitutional right to equal treatment.

Lawyers for the university counter that the Texas affirmative-action plan complies with the terms approved in the 2003 Michigan Law School case. In that decision, the Supreme Court approved the limited use of race in affirmative-action programs designed to foster a “critical mass” of minority enrollment.

Gregory Garre, arguing for the University of Texas, said that while the state’s top 10 percent admissions program significantly boosted minority enrollment, it could not produce a truly diverse student body.

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