Supreme Court Conservatives Press Affirmative Action Supporters to Defend “Racial Preferences“

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 Justice John Roberts Jr. told the university’s attorney. “When is that endpoint?”

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, responded that 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 1180 out of 1600, 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, from 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.

“What you’re saying is that what counts is race above all,” Kennedy pressed Garre, the university’s attorney, who quickly denied it.

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.

Justice Sandra Day O’Connor, a Republican appointee who has since retired, wrote the majority opinion that included the key conclusion that “student body diversity is a compelling state interest that can justify the use of race in university admissions.” O’Connor watched part of the argument from the courtroom.

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.

While Fisher’s attorney, Bert Rein, said that “we recognize an interest in diversity” and insisted that affirmative action skeptics weren’t asking for the 2003 ruling involving Michigan law school applicant Barbara Grutter to be entirely overturned, some justices suggested the lawsuit had a more aggressive intent.

“You don’t want to overrule Grutter,” Sotomayor said. “You just want to gut it.”

O’Connor was replaced in 2005 by Alito, whose skepticism about racial preferences and the university’s search for a critical mass of minorities was on full display Wednesday.

“In terms of diversity, how do you justify lumping together all Asian Americans?” Alito asked at one point. “Do you think you have a critical mass of Filipino Americans? Of Cambodian Americans?”

Justice Elena Kagan, who replaced affirmative action supporter John Paul Stevens on the court in 2010, has recused herself because she previously served as the Obama administration’s solicitor general. The administration supports the University of Texas.

Scalia and Justice Clarence Thomas both voted against affirmative action in the 2003 Michigan case. Kennedy did as well, though with a concurring opinion that suggested racial diversity could be a compelling state interest in some circumstances. This means Kennedy’s position could well be the deciding one in the Texas case, which is scheduled to be decided by June.

With only eight justices considering the case, a 4-4 tie could occur. If that happens, a lower appellate court’s ruling upholding the University of Texas’ admissions policies would be sustained but would not serve as a national precedent.

Thomas, who is only the second African American justice to serve on the Supreme Court, followed his customary practice of listening in silence. He was the only justice Wednesday not to ask any questions during the often free-wheeling argument, though at one point he turned to whisper in Scalia’s ear.