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.
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“Taking the top 10 percent of a racially identifiable high school may get you diversity that looks OK on paper, but it doesn’t guarantee you diversity that produces educational benefits on campus,” he told the justices.Skip to next paragraph
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What Texas was seeking, he said, were enough black and Hispanic students to create a welcoming environment among minorities and greater opportunities for cross-racial interactions on campus and in classrooms.
To reach that “critical mass,” he said the school wanted to attract a full range of minority students – including students from affluent minority families.
Justice Samuel Alito questioned why Texas considered the top 10 percent plan faulty simply because it didn’t admit enough black and Hispanic students from privileged backgrounds.
He suggested the hypothetical example of a minority student whose parents were both lawyers with incomes in the top 1 percent of earners in the US.
“They deserve a leg-up against, let’s say, an Asian or a white applicant whose parents are absolutely average in terms of education and income,” Justice Alito asked.
“We want minorities from different backgrounds,” Mr. Garre replied. He said the admissions process seeks to achieve a degree of diversity within the minority student population – including economic diversity.
“So what you are saying is that what counts is race above all,” Kennedy said.
“No, your honor, what counts is different experiences,” Garre replied.
“You want underprivileged of a certain race and privileged of a certain race,” Kennedy said. “So that’s race.”
Fisher’s lawyer, Bert Rein, told the justices the university had already demonstrated the ability to assemble a diverse student body through the mandated 10 percent plan.
“We don’t believe they have shown any necessity for doing what they are doing,” he said. “Race should have been the last resort; it was a first resort.”
Mr. Rein said the university was engaged in an unchecked use of race, what he termed “an abominable kind of sorting out.”
Instead, he said, the Constitution requires government officials to face the highest level of judicial scrutiny before using race to grant benefits, and only then as a last resort.
Justice Breyer questioned the premise of an Alito hypothetical that suggested that if two students with identical qualifications but of different races applied for admission to Texas, skin color would decide who gets in.
Texas officials insist that race is only one of many factors in a complex, individual selection process.
Breyer highlighted the multiple factors in a question to Solicitor General Verrilli, who spoke on behalf of the Obama administration, which is in favor of the plan.
“If there are ever two applicants where the GPA, the grades, the essay one, essay two, leadership, activities, awards, work experience, community service, family’s economic status, school’s socioeconomic status, family’s responsibility, single-parent home, languages other than English spoken at home, and SAT scores relative to school’s average – if you have a situation where all those things are absolutely identical, then the person would be admitted on the basis of race,” Breyer asked.
Verrilli responded: “Not necessarily.”
The comment drew laughter in the courtroom.
“I’m trying to make a simple point here,” he added. “Neither might get in.”
Because Justice Elena Kagan has recused herself from the case, it will be decided by eight justices. Should the justices deadlock in a 4 to 4 tie, the lower court decisions upholding the Texas plan would stand.
It will take at least five justices to overturn the lower courts.
A decision in the case, Fisher v. University of Texas at Austin (11-345), is expected by June.
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