The issue of affirmative action in college admissions ran into a solid wall of conservative skepticism at the Supreme Court on Wednesday, but a long and contentious hearing gave both sides reason to wonder whether the opponents have enough votes to end it.
The answer will almost surely be provided by Justice Anthony M. Kennedy, who has never upheld a race-conscious plan such as the one being challenged in this case from the University of Texas at Austin. But Kennedy has also been reluctant to say race may never be used, and on Wednesday he seemed less convinced than the court’s other conservatives that he had all the information needed to pass judgment on UT’s program.
At times, he wondered about ordering another judicial examination of whether UT’s program has had the success it claims; at others, he seemed to think even that would not make the decision easier.
The challengers are contesting only UT’s unusual program. But the court could go further, saying the time has come to no longer allow colleges to consider race at all when building their student bodies.
Kennedy did not exhibit the impatience and opposition of his colleagues on the right, some of whom questioned the wisdom of affirmative action and wanted specific answers about when it could end.
Chief Justice John G. Roberts Jr., for instance, questioned whether the small increase in diversity that the university reaped was worth “the extraordinary power to consider race.”
When the court in 2003 decided race could be used in limited circumstances, “it was important . . . to say, look, this can’t go on forever – 25 years,” he said to the university’s attorney, Gregory G. Garre. Roberts noted half the time was up. “And when do you think your program will be done?”
The court’s return to the issue – it considered UT’s plan two years ago and sent it back for additional judicial scrutiny – comes at a time when the country’s racial divide is again on vivid display.
There are increasing protests by minority students on campuses and renewed debate about racial inequality. Polls show that differences between how whites and minorities view government, the police and opportunity are widening rather than narrowing.
Even limited changes to what is allowed could make it harder for colleges to increase their diversity, liberal Justice Stephen G. Breyer said. He said opponents were trying to “kill affirmative action through a death by a thousand cuts.”
Some conservative justices seemed to want more definitive action than that.
“What unique perspective does a minority student bring to a physics class?” Roberts asked Garre, a former Bush administration solicitor general. Garre had said one of the university’s goals was to ensure there were enough minority students in classes that they did not need to act as spokesmen for their race.
Justice Antonin Scalia was blunter, questioning the benefit of trying to include more minority students at the nation’s selective universities. “Really competent blacks” would win admission without special considerations, he said.
“There are those who contend that it does not benefit African Americans to – to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less – a slower-track school where they do well,” he said.
Some academicians call such a theory “mismatch,” and Scalia noted an amicus brief in the case that said most black scientists do not come from the most highly selective schools.
“They come from lesser schools where they do not feel that they’re – that they’re being pushed ahead in – in classes that are too – too fast for them,” Scalia said.
Garre said the Supreme Court had already rejected such a view. “Frankly, I don’t think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they’re going to inferior schools,” he said.
Roberts, Scalia and Justice Samuel A. Alito Jr. all criticized UT’s plan. Justice Clarence Thomas, the court’s only African American, asked no questions, but he has made it clear in the past that he opposes affirmative action.
The liberal justices – Breyer, Ruth Bader Ginsburg and Sonia Sotomayor, the court’s only Hispanic – were supportive of the university’s program, agreeing that it was a minimal use of race in support of creating a diverse student body that provides a richer learning environment for all.
Justice Elena Kagan, who usually votes with the liberals, recused herself from the case, presumably because she worked on the issue when she was President Obama’s solicitor general. A tie vote would affirm the lower court that approved UT’s plan but would provide no precedent.
The Supreme Court in the past has decided that the use of race as one factor in a “holistic review” of an applicant is acceptable. Sotomayor said that if UT’s limited use of race did not pass muster, she doubted whether “any holistic review [will] ever survive.”
That leaves Kennedy, who wrote the opinion two years ago when the court voted 7 to 1 to send the UT case back to a lower court. The justices at the time told the lower court to apply the kind of rigorous evaluation that must accompany any government action that considers race.
“Strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice,” Kennedy wrote in 2013.
He suggested Wednesday that perhaps the court still did not have enough facts about how the university’s program worked and wondered whether there should be a trial at the district court level, which has not happened. But later, Kennedy seemed to think a trial would produce no new evidence.
“We’re just arguing the same case,” he said. “It’s as if nothing had happened.”
After the 2013 Supreme Court action, a panel of the U.S. Court of Appeals for the 5th Circuit once again upheld the UT program. In a 2-to-1 vote, the panel concluded for a second time that the university’s limited consideration of race was “necessary” and narrowly tailored to meet the university’s compelling interest in achieving diversity.
Attorneys opposed to affirmative action are representing Abigail Fisher, a white woman who was denied admission to UT and filed suit in 2008. She contends the university’s attempts to boost the number of African American and Hispanic students cost her a spot. (The university says she would not have made the cut regardless.) She subsequently graduated from Louisiana State University.
UT has a unique system. It admits about 75 percent of its freshmen based on their graduation rankings from Texas high schools, the “Top Ten” program. Because many of the state’s high schools are dominated by one race or ethnicity, that has created a diverse applicant pool.
For the remaining slots, the university uses a “holistic” evaluation of applicants that includes race as one of many considerations, including leadership, obstacles overcome and socio-economic factors.
The Supreme Court since 1978 has recognized that promoting diversity on campuses allows universities to give some consideration to an applicant’s race, which normally would be unconstitutional.
Garre said the university wants to consider race when selecting the 25 percent of students admitted under holistic review in order to provide diversity within diversity – adding students from strong schools who might not have made the top 10 percent, or out-of-state minority students who could add a different perspective.
Without considering race, he said, those admissions would become an “an all-white enterprise,” resulting in “glaring racial isolation” for other UT minority students.
Under questioning from the conservatives, Garre said he could not quantify how many of the minority students admitted among the 25 percent would not have been admitted without race being considered.
Bert Rein, representing Fisher and the Project on Fair Representation, the group that brought the case, said that the number of students admitted was a tiny percentage, so small that it was not worth violating what normally would be a constitutional prohibition on sorting by race.
“We’re talking about a very small effect,” Rein said, but no one can say for sure “because they didn’t study it.”
That’s a problem, he said, because the use of race is supposed to be a last resort.
Solicitor General Donald B. Verrilli Jr., representing the Obama administration, said courts should defer to university leaders, who are practically united in building diverse campuses.
In response to a question from Scalia about how the program will “change things, so that we can stop classifying people by race,” Verrilli replied, “I think the universities do make progress on this, and I think you do get to a point where you create a virtuous cycle.” It’s an area, Verrilli said, “in which the university’s expertise and experience deserves deference.”
The case is Fisher v. University of Texas at Austin.
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