A Changed Court Revisits Affirmative Action in College Admissions

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WASHINGTON -- The Supreme Court on Wednesday heard arguments in a major affirmative action case, with the justices debating the nature and value of diversity in higher education and the role of the courts in policing how much weight admissions officers may assign to race.

The questioning was exceptionally sharp, but the member of the court who probably holds the decisive vote, Justice Anthony M. Kennedy, tipped his hand only a little, asking a few questions that indicated discomfort with at least some race-conscious admissions programs. He told a lawyer for the University of Texas at Austin, which was challenged over its policies, that he was uncomfortable with its efforts to attract privileged minorities.

"What you're saying," Justice Kennedy said, "is what counts is race above all."

He asked a lawyer for Abigail Fisher, a white woman who was denied admission to the university, whether the modest racial preferences used by the university crossed a constitutional line. Then he proposed an answer to his own question.

"Are you saying that you shouldn't impose this hurt, this injury, for so little benefit?" he asked.

Justice Sonia Sotomayor summarized the central question in the case. "At what point -- when -- do we stop deferring to the university's judgment that race is still necessary?" she asked. "That's the bottom line of this case."

The last time the Supreme Court heard a major affirmative action case about admission to public universities, in April 2003, Justice Sandra Day O'Connor was at the court's ideological center. And it was she who wrote the majority opinion in the court's 5-to-4 ruling allowing race to be considered in admission decisions, as one factor among many.

Now all eyes are on Justice Kennedy, who dissented in the 2003 decision, Grutter v. Bollinger. More important, he has never voted to uphold an affirmative action program. There is thus reason to think the earlier decision is in peril.

On the other hand, Justice Kennedy has occasionally parted ways with the more categorical approach of the court's four-member conservative wing, and has indicated that some modestly race-conscious programs may pass constitutional muster.

The parties in the new case, Fisher v. University of Texas, No. 11-345, certainly seem to believe they must have Justice Kennedy's vote to win. They each cited him by name about 20 times each in their main briefs.

Justice O'Connor, who retired in 2006, wrote in the Grutter decision in 2003 that she expected it to stand for 25 years. Changes in the court's personnel since then, notably her replacement by Justice Samuel A. Alito Jr., may speed up that timetable.

"I know that time flies," Justice Stephen G. Breyer said on Wednesday, "but only nine of those years have passed."

Ms. Fisher, 22, recently graduated from Louisiana State University and works as a financial analyst in Austin, Tex. Her lawyer, Bert W. Rein, was questioned closely by the more liberal justices about whether she suffered the sort of injury that gives her standing to sue.

They also pressed the point that the Texas program is very similar to the one endorsed in Grutter. "It seems to me that this program is no more aggressive than the one in Grutter," Justice Ruth Bader Ginsburg said. "In fact, it's more modest."

Three-quarters of applicants from Texas are admitted under a program that guarantees admission to the top students in every high school in the state. That program is not directly at issue in the case.

Students from Texas who missed the cutoff, like Ms. Fisher, and those from elsewhere are considered under standards that take account of academic achievement and other factors, including race and ethnicity. The case concerns that second aspect of the admissions program.

The Supreme Court has four basic options. It could decline to decide the central issue in the case at all if it credits the university's argument that Ms. 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, like the one used to select the bulk of the class in Texas, have produced substantial diversity.

Or it could overrule Grutter and 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 under Title VI of the Civil Rights Act of 1964, which forbids racial discrimination in programs that receive federal money.

Justice Elena Kagan has disqualified herself, presumably because she had worked on the case as solicitor general. That leaves open the possibility of a 4-to-4 tie, which would have the effect of affirming a lower-court decision upholding the Texas program.

Justice Sotomayor told Mr. Rein that she sensed an agenda. "You don't want us to overrule Grutter," she said. "You want us to gut it."


This article originally appeared in The New York Times.


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