Justices revisit Texas case over race-based admissions
WASHINGTON — The future of affirmative action at public universities appeared in some doubt Wednesday as the Supreme Court justices debated for a second time whether to strike down a race-based admissions policy at the University of Texas.
It was clear that the court’s conservatives, including Chief Justice John Roberts, believe that using affirmative action in admission decisions is unneeded and unconstitutional.
When a university lawyer spoke of the importance of classroom diversity, Roberts asked, “What unique perspective does a minority student bring to a physics class?”
In the past, whenthehigh court has upheld affirmative action, it did so with the understanding that it was a “temporary” measure, Roberts said.
The liberals, led by Justice Sonia Sotomayor, spent much of the hour arguing in defense of the university’s policy.
Sotomayor, the court’s first Latina, grew up in the Bronx and said she had benefited from affirmative action when she was admitted to Princeton University.
“I fear something. I do have a worry” that the court is on the verge of shutting down affirmative action at state universities across the nation, she said.
By contrast, Justice Antonin Scalia questioned whether affirmative action benefits black students.
“There are some who contend it does not benefit African-Americans 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 slower- track school, where they do well,” he said.
Scalia was referring to the so-called mismatch theory set out by UCLA law professor Richard Sander, which contends that black students sometimes fare badly if they are admitted to a top-tier law school. The same students would have done better had they enrolled in another law school that was somewhat less demanding, the theory holds.
Scalia said he was not convinced the University of Texas needed more black students. “Maybe it ought to have fewer,” he said.
Washington attorney Gregory Garre, the lawyer for the university, who served as solicitor general, the government’s top appellate lawyer, under President George W. Bush, said the court had rejected that thinking when it upheld limited use of affirmative action in a case from Michigan in 2003.
“I think what experience shows, at Texas, California and Michigan, that now is not the time and this is not the case to roll back student body diversity in America,” he said.
Justice Anthony Kennedy, who almost surely holds the deciding vote, voiced frustration because university lawyers could not quantify in detail what role race plays in Texas in deter- mining which students are admitted.
“We’re just arguing the same case again,” Kennedy said at one point, referring to the fact that the court had heard the same case two years ago and sent it back to a lower court for closer review.
The Texas case is complicated because the state has a law guaranteeing admission to the top 10 percent of students in each of its more than 1,000 high schools based on their grades only, with no consideration to race.
Under that policy, which now accounts for about 75 percent of all admissions to the Austin campus, about one-third were Latino or African-American in recent years.
The dispute arose over a supplemental program that currently accounts for the remaining 25 percent of admissions.
A decade ago, when the top-10 percent policy was providing far fewer minority admissions than it is today, the university decided to use race as one of several factors to choose additional freshmen. It’s this policy that was challenged in a lawsuit by Abigail Fisher, who was turned down in 2008.