Supreme Court Focuses on Affirmative Action - Again

Special to the Trice Edney News Wire from the Richmond Free Press

(TriceEdneyWire.com) - The sharply divided U.S. Supreme Court vigorously peppered lawyers Oct. 10 with questions in a closely watched case focusing on the University of Texas admissions program that favors some African-American and Hispanic applicants.

But it remains uncertain whether this case will undermine affirmative action policies at universities across the country. The court’s conservatives, such as Chief Justice John Roberts and Justice Samuel Alito, seemed to use their questions to attack the Texas program, pressing the university’s lawyer on the details of admissions and when race breaks a tie between similar applicants.Chief Justice Roberts, for example, challenged the university’s lawyer to explain how judges would know when the university had achieved its desired level of diversity.

Justice Clarence Thomas stayed silent. He followed his usual practice of asking no questions. He already is counted as being on the side of foes of the Texas plan based on his past writings condemning affirmative action. However, liberal justices, such as Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor, seemed equally eager to use their questions to show support for the program.

Justice Stephen Breyer in his turn asked the lawyer for program opponents why the court should overturn its past precedents — particularly a 2003 case that upheld such practices — into which “so much thought and attention went” and which “so many people across the country have relied on.”

Only eight justices heard the oral arguments. Justice Elena Kagan, an Obama appointee who would be expected to endorse affirmative action, is not participating. She stepped aside apparently because she worked on the case in her previous job as U.S. solicitor general. A 4-4 tie would affirm the lower court decision in favor of Texas. The court is expected to issue its decision before the end of its term in June.

The overall tone of the hearing suggested that while the sharply divided court might not uphold the Texas plan, it might lack a majority of justices to broadly strike down the use of race in admissions. The justices who appear to be most resistant to the Texas plan are the chief justice, along with Justices Alito, Anton Scalia and Thomas. The justices appearing ready to uphold the Texas program include Justices Ginsburg, Breyer and Sotomayor. Justice Anthony Kennedy, whose position could be decisive, signaled some concerns with the Texas plan but did not suggest by his questions that he was ready to curtail affirmative action practices nationally.

The case revisits ground the court covered just nine years ago. Then the Supreme Court narrowly upheld affirmative action policies at the University of Michigan Law School, which had been sued over its admissions practices. By a 5-4 vote, the court in 2003 said universities could consider an applicant’s race alongside a host of other factors to improve diversity. Public universities in 43 states as well as private colleges and universities have relied on that decision, Grutter v. Bollinger, to include race as a factor in their admissions decisions.

The court has changed since then. Justice Sandra Day O’Connor, who wrote the University of Michigan decision, retired in 2006 and has been replaced by the more conservative Justice Alito. The former justice watched the arguments in the courtroom on Wednesday.

The Texas case arose after Abigail Fisher, a White student, was denied admission by theUniversity of Texas at Austin. She sued in 2008, claiming that black and Latino students with worse credentials were accepted ahead of her. She argues that the school’s use of race in admissions violates the Constitution’s guarantee of equal protection.

The case came to the Supreme Court after the 5th U.S. Circuit Court of Appeals rejected her challenge based on the high court’s 2003 precedent. Like other Texas schools, UT fills most of its entering class of freshmen using a policy that grants automatic admission to in-state students in the top 10 percent of their high school classes.

For the remaining slots, it says it considers an applicant’s race only as one of many factors and only to improve diversity. The University of Texas and its supporters contend that colleges and universities must have the flexibility to consider race to ensure diversity.

Fisher’s claim rests on the legal argument that under the 14th Amendment’s promise of equal protection, universities can use race only if there is no other way to improve diversity.