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.
“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.
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.