Texas affirmative action plan in trouble at court

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by MARK SHERMAN

Associated Press

Posted on October 11, 2012 at 6:40 AM

WASHINGTON (AP) -- The fate of the University of Texas’ affirmative action program rests with the Supreme Court, where skeptical conservative justices indicated they are ready to impose new limits on the use of race in college admissions.

Liberal justices more supportive of affirmative action worried variously at Wednesday’s argument that the court would either eviscerate its 9-year-old ruling upholding the use of race or enmesh federal judges around the country in evaluating college admissions programs.

Depending on how broadly the court rules, the decision could affect not only public colleges but most private ones as well. That’s because federal civil rights law prevents discrimination by institutions that receive federal money.

“A decision condemning Texas’ admissions procedures might well be taken, depending on how it was written, to confound and restrict (our) effort to assemble diverse student bodies,” 37 small private colleges in 12 states told the court in a written submission. More than five dozen private schools, including the eight Ivy League colleges, chimed in to support the Texas plan.

The court heard arguments in a challenge to the program from a white Texan who contends she was discriminated against when the university did not offer her a spot in 2008.

Abigail Fisher, 22, the rejected student who sued, was among the hundreds of spectators at the arguments. Also in attendance was retired Justice Sandra Day O’Connor, who wrote the majority opinion in a 2003 case, Grutter v. Bollinger, that upheld the use of race in college admissions.

Changes in the court’s makeup since then, especially O’Connor’s departure, could affect the outcome of the Texas case. Justice Samuel Alito, O’Connor’s successor, has voted consistently against racial preferences since he joined the court in 2006 and appears likely to side with Fisher.

Among the liberal justices who looked more favorably on the Texas admissions system was Justice Sonia Sotomayor. She told Bert Rein, Fisher’s Washington-based lawyer: “So you don’t want to overrule Grutter, you just want to gut it.”

Justice Stephen Breyer, a part of the majority in 2003, said he feared the court would put federal judges in charge of “dictating the policy of admission of all these universities.”

Texas says the program is necessary to provide the kind of diverse educational experience the high court previously has endorsed. Along with race, the university considers community service, work experience, extracurricular activities, awards and other factors as it seeks to fill out its incoming classes. The bulk of its slots go to students who are admitted based on their high school class rank, without regard to race.

In 2008, the freshman class of more than 6,600 at Texas included 1,713 African-American and Hispanic students. Of those, 216 were admitted under the program that is being challenged.

Conservative justices seemed more open to the arguments of opponents of the program who say the university is practicing illegal discrimination by considering race at all, especially since the school achieves significant diversity through its race-blind admissions.

Chief Justice John Roberts, Justice Antonin Scalia and Alito raised repeated objections to the affirmative action plan.

Roberts wanted to know how the university would determine when it had a “critical mass” of diversity on campus that would allow it to end the program.

Near the end of the session, he complained: “I’m hearing a lot about what it’s not. I would like to know what it is.”

Scalia, a dissenter in the 2003 case, mocked the university’s efforts to have more minority students not just in the student body as a whole but at the classroom level.

“How do they figure out that particular classes don’t have enough? What, somebody walks in the room and looks them over to see who looks Asian, who looks black, who looks Hispanic? Is that how it’s done?” Scalia said.

Justice Anthony Kennedy, who is the likely decisive vote, looked skeptically on Texas lawyer Greg Garre’s defense of the program. “What you’re saying is what counts is race above all,” Kennedy said.

Kennedy also was a dissenter in 2003 and never has voted in favor of an affirmative action program, though he has voiced support for diversity in education.

Justice Elena Kagan is not taking part, probably because she worked on the case at the Justice Department before joining the court.

A decision should come by late June.

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