The Supreme Court seemed deeply divided Wednesday over the future of affirmative action in college admissions, with liberals defending a university’s right to assemble racially diverse student bodies, and conservatives worrying about the constitutional rights of those who are denied admission because of their race.
As expected, the justice who emerged as most likely to decide the issue was Justice Anthony M. Kennedy. The veteran justice has never approved of an affirmative action plan that has come before the court but has agreed that campus diversity is the kind of compelling government interest that can sometimes license the use of race in admission decisions.
The case comes from the University of Texas at Austin, which draws about 75 percent of its freshman class based on their graduation rankings from Texas high schools. For the remaining students, it uses a “holistic” evaluation that includes race as one of many factors.
A white applicant named Abigail Fisher says those attempts to boost the number of African American and Hispanic students cost her a spot in the freshman class of 2008.
The court since 1978 has recognized that promoting diversity on the nation’s campuses allows a limited consideration of race that normally the Constitution would not countenance. As recently as 2003, in a case called Grutter v. Bollinger, the court held that universities may consider race when striving toward reaching a “critical mass” of diversity that benefits all.
Liberals on the court noted that the majority said then that it expected no such racial considerations would be needed in 25 years.
“I know that time flies, but only nine of those years have passed,” Justice Stephen G. Breyer said.
What has changed, though, is the court’s composition. The 5 to 4 Grutter decision was written by Justice Sandra Day O’Connor, who has been replaced on the court by Justice Samuel A. Alito Jr. Alito has proven to be a fierce opponent of race-specific government policies.
The change was underscored when O’Connor entered the courtroom a little after the nearly 11 / 2-hour argument began and took a seat on the front row, where retired justices normally sit to watch proceedings.
Fisher’s attorney, Bert Rein, did not ask the court to overturn Grutter. He said UT had failed to narrowly tailor its examination of race and said it had not shown the necessity for racial considerations that Grutter demanded.
UT, he said, had become one of the nation’s most diverse universities because of the policy of admitting the top 10 percent of each Texas high school, which yield a diverse crop of students because the schools are often heavy with one race.
UT should be using racial considerations as a last resort, Rein said, but is using them “as a first resort.”
Justice Sonia Sotomayor said Rein was not proposing to overturn Grutter but “to gut it.”