POLITICS

Supreme Court Justices’ Comments Don’t Bode Well for Affirmative Action

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NEWS CLIPS: U.S. By REUTERS 1:01
Plaintiff in Affirmative Action Case Speaks

Plaintiff in Affirmative Action Case Speaks

Abigail Fisher, who says the University of Texas denied her admission because of her race, spoke outside the Supreme Court on Wednesday after a hearing on the use of race in college admissions.
 By REUTERS on  December 9, 2015. Photo by J. Scott Applewhite/Associated Press. Watch in Times Video »
WASHINGTON — An affirmative action plan at the University of Texas seemed to be in trouble at the Supreme Court on Wednesday. By the end of an unusually long and tense argument, a majority of the justices appeared unpersuaded that the plan was constitutional.
A ruling against the university could imperil affirmative action at colleges and universities around the nation.
In a remark that drew muted gasps in the courtroom, Justice Antonin Scalia said that minority students with inferior academic credentials may be better off at “a less advanced school, a slower-track school where they do well.”
“I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible,” he added.
It remains conceivable that the court could avoid ruling on the question for a second time. Justice Anthony M. Kennedy, who almost certainly holds the crucial vote and has never voted to uphold an affirmative action plan, spent almost all of his time exploring whether the university should be allowed to submit more evidence to justify its use of race in accepting students.

INTERACTIVE GRAPHIC 

How Minorities Have Fared in States With Affirmative Action Bans 

In states that have banned affirmative action in college admissions, prominent public universities have tended to enroll fewer black and Hispanic freshmen. 
 OPEN INTERACTIVE GRAPHIC 
Justice Kennedy seemed frustrated at the prospect of having to decide the case, which the court largely ducked in a previous encounter in 2013. “We’re just arguing the same case,” he said. “It’s as if nothing had happened.”
The case, Fisher v. University of Texas, No. 14-981, was brought by Abigail Fisher, a white student who says the University of Texas denied her admission in 2008 because of her race. She has since graduated from Louisiana State University.
Several of the court’s conservative justices subjected the lawyers defending the Texas plan to a barrage of skeptical questions.  As usual, Justice Clarence Thomas said nothing, but he is an adamant opponent of affirmative action. Justice Scalia’s questions were particularly hostile to racial preferences, which he said can leave minority students worse off. “Most of the black scientists in this country don’t come from schools like the University of Texas,” he said. “They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.”
Chief Justice John G. Roberts Jr. questioned the value of diversity in at least some academic settings. “What unique perspective does a minority student bring to a physics class?” he asked.
Justice Samuel A. Alito Jr. focused on unusual features of the Texas admissions plan, which grants automatic admission to the University of Texas at Austin to students in the state who graduate in roughly the top 10 percent of their high school class. That part of the program, which accounts for 75 percent of the student body, does not directly consider race but increases racial diversity largely because many high schools in the state are not diverse.
For the remaining students, the plan takes account of race as one factor among many, the approach used by many selective colleges and universities nationwide. Ms. Fisher had sought admission under the second part of the plan.
Justice Alito said the first part of the plan should suffice to produce educational diversity.
“Your underlying claim,” he told Gregory G. Garre, a lawyer for the university, “is that there is something deficient about the top-10 admittees.”
Justice Alito added that the top-10 program helped underprivileged students in a way the race-conscious admissions did not. “The reason for adopting affirmative action in the first place,” he said, “was because there are people who have been severely disadvantaged through discrimination and lack of wealth, and they should be given a benefit in admission.”
But Justice Ruth Bader Ginsburg said the top-10 program was itself problematic. “It seems to me that it is so obviously driven by one thing only, and that thing is race,” she said. “It’s totally dependent upon having racially segregated neighborhoods, racially segregated schools, and it operates as a disincentive for a minority student to step out of that segregated community and attempt to get an integrated education.”
Justice Elena Kagan was recused from the case because she had worked on it as solicitor general of the United States. The three remaining liberals asked questions in nervous and exasperated tones.
“People in the universities and elsewhere are worried,” Justice Stephen G. Breyer said, that the Supreme Court will “kill affirmative action through a death by a thousand cuts.”
Justice Sonia Sotomayor said race was not the predominant factor in the university’s race-conscious admissions decisions. “I thought that what they’re looking for is leaders in diversity, not just of race, but of experiences generally,” she said.
Supreme Court arguments usually last an hour. But on Wednesday, Chief Justice Roberts announced that the court was adding another 25 minutes, and in the end, the argument lasted for 95 minutes.
The lawyers defending the Texas plan said the court’s ruling, expected by June, would be timely and far-reaching.
“Now is not the time and this is not the case to roll back student body diversity in America,” Mr. Garre said.
Solicitor General Donald B. Verrilli Jr., who argued in favor of the Texas plan, said, “What the court is going to say in this case obviously is going to apply eventually to every university in the country.”
The last time the court considered the case, in 2013, it avoided giving a direct answer about the constitutionality of the Texas program, and it returned the case to an appeals court for reconsideration.
The 2013 decision, decided by a 7-to-1 vote, was a compromise, Justice Breyer said on Wednesday. “That opinion by seven people reflected no one’s views perfectly,” he said.
Justice Kennedy did not seem eager to issue a definitive ruling now, either, and he asked the lawyers about whether the trial court should instead collect more evidence.
“The litigants, and frankly this court,” he said, “have been denied the advantage and the perspective that would be gained if there would be additional fact-finding.”
Late in the argument, though, he seemed to back off the idea.
“All of the colloquy so far indicates to me,” Justice Kennedy told Mr. Garre, “that if you had a remand, you would not have put in much different or much more evidence than we have in the record right now.”
The Supreme Court’s decision to revisit the case this term struck many supporters of affirmative action as an ominous sign, one suggesting that a 12-year-old societal compromise was in peril.
In 2003, in Grutter v. Bollinger, the court said that public colleges and universities could not use a point system to increase minority enrollment but could take race into account in vaguer ways to ensure academic diversity. Though the usual constitutional rule is that the government cannot classify people by race, the 2003 decision said the court would make a limited exception for public colleges and universities for roughly 25 years.
“Are we going to hit the deadline?” Chief Justice Roberts asked Mr. Garre. “We’re talking about giving you the extraordinary power to consider race in making important decisions.”
Mr. Garre responded that “I’m not here to give you a date.”
A version of this article appears in print on December 10, 2015, on page A1 of the New York edition with the headline: Court Skeptical Of Racial Basis In College Entry . Order Reprints|  Today's Paper|Subscribe