Justices Clash on Affirmative Action on Texas Case


The Supreme Court on Wednesday seemed likely to curb racial preferences in university admissions, after 80 minutes of intense argument revealed deep fissures among justices’ views on the pursuit of diversity in higher education.

The case arose when Abigail Fisher, an applicant to the University of Texas, alleged the school rejected her because she is white. But the implications stretch far beyond the Austin campus. Since the 1970s, racial and ethnic diversity has become a central creed in American higher education, reflected in dozens of briefs backing UT filed by institutions ranging from the Ivy League to the military academies.

Justice Anthony Kennedy, considered the only one of the court’s five conservatives open to arguments for affirmative action, damped university administrators’ hopes of retaining largely unfettered discretion over race’s role in admissions. When UT’s lawyer, Gregory Garre, sought to explain an admissions formula the university says is a “holistic” review of myriad individual attributes, Justice Kennedy was skeptical.

“So what you’re saying is that what counts is race above all,” he said. “You want underprivileged of a certain race and privileged of a certain race. So that’s race.”

WSJ Supreme Court Reporter Jess Bravin joins the News Hub to discuss the Supreme Courts review of the controversial Affirmative Action practice, and whether state schools can consider race as a college admissions criteria.

Justice Kennedy gave no suggestion of retreating from his prior view of diversity as a compelling state interest. He has said that this, in theory, could justify some racial preferences. However, he has never voted to uphold any affirmative-action program to come before the court.

Read Court Transcripts here

UT’s position was problematic to the court’s conservatives partly because the university has been able to maintain a diverse enrollment through a colorblind admissions formula that automatically accepts roughly the top 10% in class rank from each Texas high school. Because Texas has many schools that are nearly all black or all Hispanic, that plan has yielded roughly 5% black and 20% Hispanic undergraduate enrollment.

The university says, however, that the highest-ranked students at a disadvantaged school have lower SAT scores than some in the middle of the pack at a more competitive suburban high school. UT’s affirmative-action program aims to open doors for minority applicants from middle-class or professional families. Such students can “help dispel stereotypical assumptions…which actually may be reinforced” by minorities admitted only because of the top-10% plan, UT said in its brief.

Justice Samuel Alito seized on that point. “I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don’t think I’ve ever seen before,” he said.

Suppose UT gets a minority applicant whose parents “have income that puts them in the top 1% of earners in the country,” Justice Alito said. “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?”

Mr. Garre replied that affluent blacks or Hispanics bring “different experiences” than those from disadvantaged backgrounds and that the university was justified in ensuring their perspectives could also be found on campus.

College affirmative action has hung by a thread since 1978, when a fractured court barred quotas but authorized administrators to consider race as a “plus” factor among other characteristics. In 2003, the court reaffirmed that position by a 5-4 vote, in an opinion by Justice Sandra Day O’Connor in Grutter v. Bollinger.

Justice O’Connor retired in 2006, and Justice Alito, selected by President George W. Bush to fill her seat, clearly shifted the court majority on affirmative action.

Liberal justices seemed frustrated, if not angry, that so recent a ruling was being reconsidered.

Justice Kennedy, during a group portrait at the Supreme Court building in Washington on Oct. 8, 2010.

Justice Stephen Breyer asked Bert Rein, Ms. Fisher’s lawyer, if he wanted the court to overrule the O’Connor opinion outright.

“Grutter said it would be good law for at least 25 years, and I know that time flies, but I think only nine of those years have passed,” he said. “Why overrule a case into which so much thought and effort went and so many people across the country have depended on?”

Mr. Rein said he wasn’t asking the court to overturn a precedent—a rare act—but to stop administrators from using Grutter as carte blanche for race preferences.

“So you don’t want to overrule Grutter, you just want to gut it,” said Justice Sonia Sotomayor.

Justice Elena Kagan, who worked on the case as solicitor general, recused herself. A decision is expected by July.

A version of this article appeared October 11, 2012, on page A2 in the U.S. edition of The Wall Street Journal, with the headline: Justices Clash on Affirmative Action.

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