(CN) – Justice Antonin Scalia raised eyebrows in a Supreme Court hearing on affirmative action Wednesday by suggesting that it hurts black students to put them into more-rigorous programs when they come from “lesser schools.”
It was the second time the high court considered the issue of affirmative action in Texas public universities. After the justices vacated the dismissal of an earlier case in 2013, the Fifth Circuit ruled on remand last year that the University of Texas at Austin can consider race in admitting students.
The justices agreed to revisit the constitutional challenge brought by Abigail Fisher, a white applicant who says she was denied admission to the Texas flagship university in 2008 because of her race.
Fisher’s case has become a defining moment in the national debate over the consideration of race in university admissions, with arguments closely watched by civil rights leaders, university officials and others apprehensive that the high court may be positioned to phase out affirmative action in American universities.
Wednesday’s oral argument centered on how the university uses race as a factor, with some conservative justices challenging the admissions program designed to boost minority enrollment.
“You haven’t mentioned in your briefs anything that the University of Texas has done to increase racial diversity at the classroom level, other than this admissions program,” Justice Samuel Alito said in questioning a university lawyer.
Alito expressed doubt over the suggestion that minority students admitted under the top 10 percent plan were not at the same level as those accepted under the standard review program, calling it “terrible stereotyping.”
In Texas, students in the top 10 percent of their graduating high school class are automatically admitted to public universities in the state, including UT. The program has largely increased racial diversity in Texas colleges.
But Scalia made it clear student body diversity didn’t interest him.
“There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do as well, as opposed to having them go to a less-advanced school, a slower-track school where they do well,” Scalia said.
“One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the university of Texas,” Scalia continued. “They come from lesser schools where they don’t feel that they’re being pushed ahead in classes that are too fast for them.
“I’m just not impressed by the fact that the University of Texas may have fewer. Maybe it ought to have fewer,” Scalia said. “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.”
But Gregory Garre, an attorney for the university, said that diversity languished at the University of Texas in the period where race-blind holistic admissions, plus the top 10 percent program were used.
“The plan at issue here was necessary to supplement that,” Garre told Alito. “Now is not the time and this is not the case to roll back student body diversity in America.”
It’s the first time for the current makeup of the court to consider affirmative action on the merits, with Alito having replaced the more moderate Sandra Day O’Connor when she retired in 2006.
The court’s only Hispanic, Justice Sonia Sotomayor, defended the Texas program and, after listing university data supporting its use, asked Fisher’s attorney, “What more do they need.”
Analysts say Justice Anthony Kennedy’s vote will be the one to watch. During arguments, Kennedy – often the court’s swing vote – raised the possibility that more evidence could be gained by sending the case back to the trial court for “additional fact-finding.”
“We’re just arguing the same case,” Kennedy said.
Elizabeth Wydra, chief counsel at the Constitutional Accountability Center, said it was clear after today’s argument that the case comes down to Kennedy.
“He was tough to read, asking questions of both sides, but given his appreciation at the end of last term for a key piece of Rev. Dr. Martin Luther King, Jr.’s legacy – a robust Fair Housing Act – his vote in this case shouldn’t be counted out. The Constitution’s text and history are clearly on the university’s side,” she said.
Andrew Grossman, an attorney with BakerHostetler who filed an amicus brief in the case, said that Kennedy has never voted to uphold an affirmative action program.
“And his written opinions argue that public institutions face an exceedingly heavy burden to justify not only the decision to consider race but also the precise means of doing so,” Grossman added.
Grossman said a complete ban on affirmative action isn’t likely since the plaintiff hasn’t asked for one, but that there is reason to believe the court is prepared to strike down the university’s race-based admissions program and narrow the circumstances when public universities can consider race.
Outside the court, Fisher said that she was “humbled and grateful” that the Supreme Court agreed to hear the case again.
“Like most Americans, I don’t believe that students should be treated differently based on their race. Hopefully this case will end racial classifications and preferences in admissions at the University of Texas,” she said
Wednesday’s arguments were heard by eight of the nine justices. Elena Kagan did not participate because of her work while U.S. solicitor general in the Obama administration, when it backed the University of Texas in lower court litigation.
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