WASHINGTON (CBSDC/AP) — Torn as ever over race, the Supreme Court on Wednesday weighed whether it’s time to end the use of race in college admissions nationwide or at least at the University of Texas.
With liberal and conservative justices starkly divided, the justice who almost certainly will dictate the outcome suggested that the court may need still more information to make a decision in a Texas case already on its second trip through the Supreme Court.
“We’re just arguing the same case,” Justice Anthony Kennedy said, recalling arguments first held in 2012 in the case of Abigail Fisher. “It’s as if nothing has happened.”
Kennedy said additional hearings may be needed to produce information that “we should know but we don’t know” about how minority students are admitted and what classes they take to determine whether the use of race is necessary to increase diversity at the University of Texas.
Fisher has been out of college since 2012, but the justices’ renewed interest in her case appeared to be a sign that the court’s conservative majority is poised to cut back, or even end, affirmative action in higher education.
Their skepticism about it was on display during more than 90 minutes in a packed courtroom.
“What unique perspective does a minority student bring to a physics class?” Chief Justice John Roberts asked at one point, challenging a part of Texas’ argument that says its program is needed to increase diversity at the classroom level.
Justice Antonin Scalia suggested it’s possible that some black students would benefit from being at a “less advanced” and “slower-track school,” instead of Texas’ flagship campus in Austin, where some are “being pushed ahead in classes that are too fast for them.”
According to CBS News, Scalia added that one brief that was submitted said “most of the black scientists in this country don’t come from schools like the University of Texas… They come from lesser schools where they do not feel that they’re that they’re being pushed ahead in classes that are too too fast for them.”
Al Sharpton blasted Scalia’s comments outside the Supreme Court building.
“I didn’t know if I was at the courtroom at the United States Supreme Court or at a Donald Trump rally,” Sharpton told reporters, CBS News reports.
It was not clear from the arguments whether Kennedy would go as far as his conservative colleagues to deal a blow to race as a factor in college admissions.
Potentially complicating the outcome, Justice Elena Kagan is sitting out the case because she worked on it at an earlier stage at the Justice Department, before joining the court. Her absence creates the possibility of a 4-4 split. That would resolve the case in Texas’ favor, but say nothing about the issue nationally. The other three liberal justices appeared solidly in favor of the Texas program.
The arguments focused on whether the university has compelling reasons to consider race among other factors when it evaluates applicants for about one-quarter of its freshman class. Most students are admitted to the university through a plan that guarantees slots to Texans who graduate in the top 10 percent of their high school classes.
Fisher says the “top 10” program works well to bring in Hispanic and African-American students, without considering race. Bert Rein, representing Fisher, said the university can take other steps to diversify its student body without explicit reference to race, including reducing its reliance on standardized test scores.
But Justice Sonia Sotomayor, who has said she benefited from affirmative action, said Rein was calling on Texas to take steps that would “reduce its educational quality.” Justice Clarence Thomas, an affirmative action opponent who has said he felt stigmatized by racial preferences, was customarily silent during the arguments.
Texas says the “top 10” program alone is not enough and that the school needs the freedom to fill out incoming classes as it sees fit. Gregory Garre said on behalf of the university that minority enrollment plummeted at top public universities in California and Michigan after they ended the consideration of race.
“Now is not the time and this is not the case to roll back student-body diversity in America,” Garre said.
Justice Samuel Alito said the university is engaging in “terrible stereotyping” by suggesting there is something “deficient about the African-American students and the Hispanic students who are admitted under the top 10 percent plan.”
Twelve years ago, the justices reaffirmed the consideration of race in the quest for diversity on campus. Their decision set a goal of doing away with such programs in 25 years.
“When do you think your program will be done?” Roberts asked Garre, who would not provide a date.
The court first heard Fisher’s case in 2012; the case ended inconclusively with a tepid decision that ordered a lower court review. The federal appeals court in New Orleans has twice upheld the Texas admissions program and rejected Fisher’s appeal.
Fisher’s case was conceived by Edward Blum, an opponent of racial preferences. Blum also is behind lawsuits against Harvard University and the University of North Carolina that aim to eliminate any consideration of race in college admissions.
Texas is unique in marrying the top 10 plan to a separate admissions review in which race is one of many factors considered. The university’s current freshman class is 22 percent Hispanic and 4.5 percent African-American. White students make up less than half the school’s freshmen.
Eight states prohibit the use of race in public college admissions: Arizona, California, Florida, Michigan, Nebraska, New Hampshire, Oklahoma and Washington.
The Obama administration, dozens of colleges and many of the nation’s largest businesses support Texas in defending its program.
There also are competing arguments over whether racial preference programs actually limit the number of students from Asian backgrounds, who are disproportionately represented in student bodies relative to their share of the population.
A decision in Fisher v. University of Texas at Austin, 14-981, is expected by late June.
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