|
 But conservative Anthony Kennedy, who often casts the deciding
vote in close cases, raised the possibility of sending the closely
watched case back to a trial judge to let the University of Texas
submit more evidence to defend its consideration of race among other
factors in picking applicants.
This suggested Kennedy might be unwilling to throw out the school's
affirmative action policy entirely.
It was the second time the justices considered whether the
affirmative action policy at the University of Texas at Austin
violated the U.S. Constitution's guarantee of equal treatment under
the law, and the oral argument lasted about 90 minutes, 30 longer
than usual. The justices in 2013 sent the case back to a lower
court.
Some of the court's conservatives voiced skepticism about the
success of affirmative action, its long-term value and even whether
it is harmful to some minority students. If those conservatives
prevail, the Texas program, challenged by a white applicant named
Abigail Fisher who was denied admission in 2008, and others like it
could be in jeopardy.
The court appeared split ideologically, with liberals voicing
support for affirmative action programs.
 A ruling is due by the end of June.
Affirmative action refers to policies under which minorities
historically subject to discrimination are given certain preferences
in order to enhance the racial diversity of a university's student
population.
Fisher's lawyers argued the university's policy favoring some black
and Hispanic applicants was unconstitutional because it
impermissibly considered race as a factor.
Conservative Justice Antonin Scalia suggested some blacks and
Hispanics are actually hurt by the Texas program because they are
not strong enough candidates to be admitted purely on academic
criteria. Scalia suggested they might be better off attending
"slower-track" schools where they can prosper.
"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," Scalia
said.
Chief Justice John Roberts, another conservative, expressed doubt
about whether the benefits of diversity can ever be properly
measured. "What unique perspective does a minority student bring to
physics class?" Roberts asked.
The case is closely followed, with an array of business and
education interests backing affirmative action. People lined up
before dawn for seating in the packed courtroom. Now 25 and working
in Austin, Fisher was in attendance.
Outside the white marble courthouse, demonstrators on both sides of
the issue staged protests. In attendance was civil rights activist
Al Sharpton, who criticized Scalia's remarks.
'NOT THE TIME'
Greg Garre, the lawyer for the university, faced tough questions not
just on the specific program but on the future of affirmative action
altogether. Garre said the university would end its program as soon
as it is able to achieve its diversity goals without it.
[to top of second column] |
"Now is not the time," Garre said.
Some of the conservatives, including Kennedy and Roberts, appeared
frustrated at what they considered the lack of evidence supporting
the university’s need for the program.
Although more evidence could be introduced if the case returns to a
lower court, Kennedy later suggested the justices themselves could
re-examine data provided by the university.
Kennedy suggested by his questions that Fisher’s attorney, Burt
Rein, might be pushing the court too far in curbing affirmative
action. At one point, he wondered whether any program could be ruled
constitutional under the challenger's standard.
At the University of Texas at Austin, the state's flagship public
university, most freshman are admitted under a program guaranteeing
places to the top 10 percent of high school graduating classes in
the state. That program admits some minority students but not in
sufficient numbers, according to the university, for the desired
campus diversity.
A supplemental program, which is targeted in the lawsuit, looks
beyond grades to a range of characteristics including race.
Among the liberal justices, the most vocal supporter of the Texas
program was Sonia Sotomayor, the court's only Hispanic, who clashed
repeatedly with Rein and some fellow justices.
She listed some of the reasons university officials gave for why
increased diversity is needed, including concerns about race-related
incidents on campus and minority students complaining about feeling
isolated.
"What more do they need?" she said.
Fellow liberals Stephen Breyer and Ruth Bader Ginsburg also appeared
to back the university.
Wednesday’s arguments were heard by eight of the nine justices.
Liberal Elena Kagan, who was U.S. solicitor general in the Obama
administration when it backed the university in lower-court
litigation, did not participate.
Fisher graduated in 2012 from her second choice school, Louisiana
State University.
"I don't believe students should be treated differently because of
their race," Fisher said on Wednesday.
(Additional reporting by Joan Biskupic)
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