Supreme Court justices found themselves enmeshed in the thorny issue of affirmative action once again Wednesday, hearing a University of Texas case that could determine whether any race-based school admissions plans can pass muster under the court’s evolving jurisprudence.
For several decades, the court has flirted with the upper boundaries of affirmative action, but a majority has always shied away from delivering a final blow to racial preferences. The case heard Wednesday doesn’t directly challenge preferences, but it does give justices an opportunity to make them all but unworkable.
Affirmative action supporters walked away from the case fearing that was the direction a five-justice majority would go after tough questioning from Republican-appointed members.
In one exchange, Justice Antonin Scalia questioned whether it was even appropriate to work so hard to recruit black students into top-tier schools for which they may not be prepared.
“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 said.
Gregory G. Garre, an attorney for the university, rejected that argument out of hand. He said it would be tantamount to separate and unequal schooling opportunities for minorities.
The justices first have to decide whether the case is ready for a decision. Justice Anthony M. Kennedy, frequently the swing vote when major social issues reach the high court, wondered whether the university had done enough research to justify its program.
It was the second time the case — a challenge raised by Abigail Fisher, a white student who was denied admission in 2008 and blamed her race as a factor — has reached the court. A 2013 decision written by Justice Kennedy sent the matter back to lower courts with instructions for how to approach it.
“We’re just arguing the same case,” Justice Kennedy told the attorneys, though he later said it was unclear whether Texas could offer anything new if the case was remanded again.
The University of Texas at Austin has struggled for years to increase enrollment of black and Hispanic students and has two admissions policies. About three-quarters of its students are accepted under the “10 percent plan,” which grants admission to students in the top 10 percent of their Texas high schools — a way to get geographic, economic and racial diversity.
But the university concluded that those students didn’t include the right kinds of what one justice called “leaders in diversity.” So for the other 25 percent of admissions, the school uses a holistic approach that includes race as a factor.
The school, backed by the Obama administration, pleaded with the justices to leave that plan intact. But its attorneys grappled with the court’s own complex precedents on race, which the justices have held can be used as a valid factor — though they have ruled out many obvious methods such as quotas.
That has left Texas and other school systems trying to come up with creative ways to increase minority numbers without appearing to focus too explicitly on race.
Mr. Garre acknowledged the difficult position: “On the one hand, we’re going to look to prove the way in which diversity was lacking,” he said. “And then on the other hand, every time we point to something, our opponents seize on it, say, ’Ah-ha, that’s your objective.’”
The justices faced the same conundrum of how to meld the goal of treating every student individually with the hard realities of the university’s diversity, which school officials said is lacking.
Mr. Garre said part of the evidence for that is the number of small classes that have few minority students — what he called “glaring racial isolation.” The conservative-leaning justices weren’t impressed.
“What unique perspective does a minority student bring to a physics class?” Chief Justice John G. Roberts Jr. wondered. “I’m just wondering what the benefits of diversity are in that situation?”
The case has wide-ranging implications. It likely will help shape most schools’ affirmative action programs, and Solicitor General Donald B. Verrilli Jr., who is backing the university in the case, told the justices that even the effectiveness of the military rests on allowing preferences to remain in place.
“Our military leaders believe that it is imperative that we have an officer corps that are not only diverse but capable of leading a diverse military,” he said.
Justice Samuel A. Alito Jr. said that sounded like an insult to the black students who qualify to enroll in the school as part of the 10 percent plan or those who end up going to schools other than the flagship UT-Austin.
“Is there anything to suggest that the top 10 percent students are less likely to enroll in ROTC or, when they do, they’re not as good as the holistic attendees?” he said.
Affirmative action supporters feared the tone of the arguments suggested that the court would lean against the school’s plan.
The Rev. Al Sharpton, a liberal activist and television show host who was in the courtroom, said the decision could amount to an education genocide for black students. He predicted that racial tensions, already high at schools across the country, would explode if the justices struck down the Texas preferences.
“This case has the potential to eliminate blacks in significant numbers from ever getting on to campus in the first place,” he said in a statement. “We’re at risk of going from how black students are treated in the classrooms and dorms of American institutions of higher education to not even making it into these hallways at all. The consequences of a negative ruling in this case would lead to a divided and resegregated America.”
Black conservative leaders were just as fearful that the court would skip a chance to end “legal segregation” through affirmative action preferences.
“Having seen the capricious way in which [the court] has interpreted the Constitution, ignored the Constitution and redefined its role, I have very little confidence in its ability to make a just decision,” Council Nedd, an Anglical archbishop and founding member of Project 21, a black conservative network, said in a statement.
Mr. Sharpton said he was particularly worried about Justice Scalia’s comments on the need for black students to be recruited to superior schools such as UT-Austin.
“Maybe it ought to have fewer,” he said. “You know, when you take more, the number of blacks, really competent blacks admitted to lesser schools, turns out to be less.”
He cited research filed in the case that found most black scientists did not attend top-tier research schools such as UT-Austin.
But Mr. Garre said the court’s own precedents have upheld the value of diversity.
“And 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. “Now is not the time, and this is not the case to roll back student body diversity in America.”
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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