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Date published: 10/11/2012
WASHINGTON--Conservative Supreme Court justices took aim at affirmative action Wednesday in a politically charged case that will likely determine what role race can play in college admissions and other public policies.
The pointed questions during an unusually long oral argument presaged a close call, and possible problems ahead, for the racial preferences sometimes granted applicants to the University of Texas and other schools. Almost certainly, this most highly anticipated case of the court's 2012 term will come down to a single swing vote.
"There has to be a logical endpoint to your use of race [in admissions]," Chief
Joined by several of his fellow Republican appointees, Roberts pressed repeatedly for details on the university's stated goal of enrolling a "critical mass" of minority students. Justice Samuel Alito said flatly that he didn't understand what the university meant, and Justice Antonin Scalia voiced repeated skepticism about what he termed "a very ambitious racial program" that tilts the decision among otherwise equal candidates. "What does the racial preference mean if it doesn't mean that in that situation the minority applicant wins and the other applicant loses?" Scalia asked rhetorically.
Attorney Gregory S. Garre, representing the university, said race is "only one modest factor among many" considered in admissions decisions, and that diversity "serves an interest that is indisputably compelling."
Andrea Noel Fisher, a white graduate of Steven F. Foster High School in Sugar Land, Texas, challenged the state university's admissions policy after she was rejected by the school in 2008. The University of Texas guarantees admission to students in the top 10 percent of their high school classes, but Fisher's 3.59 GPA was not enough to make the grade. The university also admits a certain number of other students, for whom race, leadership experience, socioeconomic status and other factors can provide an admissions advantage. Fisher, who had a combined SAT score of 1,180 out of 1,600, was rejected. She subsequently enrolled at Louisiana State University and graduated in May.
Fisher was present in the courtroom for the nearly 80-minute oral argument Wednesday morning, as was University of Texas President Bill Powers, a Harvard Law School-trained attorney, who said afterward that "we believe the educational benefits of diversity are so important, we're fighting all the way to the Supreme Court."
Powers and other university officials could be heartened, in part, by the questions and asides of Democratic appointees like Justice Sonia Sotomayor. The final call, though, seems likely to come down to Justice Anthony Kennedy, who has straddled positions on the issue and who raised questions for both sides Wednesday.
The Supreme Court last addressed affirmative action in college admissions in 2003, with a 5-4 decision upholding the University of Michigan Law School's use of race as one factor among many.
Determining that a policy meets a "compelling state interest" is one of the crucial elements a court considers when ruling whether racial distinctions comply with the Constitution. Under the 14th Amendment, states must grant "the equal protection of the laws" to all people. The other crucial element considered by courts is whether the racial policy is "narrowly tailored," which rules out sweeping quotas.