Justices divided over affirmative action challenge

The Supreme Court appeared closely divided during arguments Wednesday in a case revisiting whether it is constitutional for the University of Texas at Austin to consider race when determining student admission.
 
The 5th Circuit U.S. Court of Appeals has twice upheld the university policy being challenged by Abigail Fisher, a white woman who was denied admission in 2008. Fisher argues that the school’s use of race violates the equal protection clause under the 14th Amendment because the school already has the top 10 percent plan, which guarantees admission to students who graduate in the top 10 percent of their high school class.

{mosads}Justice Anthony Kennedy questioned why Fisher’s attorney Bert Rein objected to the university’s request to remand the case back to the district court and by doing so denied both Fisher and the court the new perspective that could have been gained from additional fact finding.

“We’re just arguing the same case,” he said. “It’s as if nothing had happened.”

UT argued that race was just one factor in its holistic review of students and that Fisher wouldn’t have been accepted even if she was minority student because she did not have the academic score needed to get into the school’s highly competitive liberal arts program. Because Fisher has already graduated from another school, UT further argued that the case should have been dismissed.

Justice Ruth Bader Ginsburg appeared to side with UT, questioning Rein about what relief was actually being sought.

Rein said Fisher was seeking a refund of the “unjustly” committed fee for application.

“If they offered you the damages you are seeking, would the case be moot?” Ginsburg asked.

But not all justices appeared to be supportive of UT.

In citing a brief, Justice Antonin Scalia said “most black scientists do not come from the most advanced schools” and suggested that minority students often do better in schools that are on a “slower track.” Therefore he said maybe UT “ought to have fewer” minority students. “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.

Gregory Garre, who argued on behalf of UT, said students who are admitted as a result of the school’s holistic review actually fare better than those admitted as a result of the top 10 percent plan.

“And, frankly, I don’t think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they’re going to inferior schools,” he said.

Justice Elena Kagan recused herself from Wednesday’s arguments leaving eight justices to rule on the case. If the court is split 4-4 in its decision, the lower court’s ruling in favor of UT will stand.

Justice Samuel Alito grilled Garre on whether UT had examined its students from the top 10 percent plan to see if the group was diverse in of itself before factoring race into general admissions.

“One of the things I find troubling about your argument is the suggestion that there is something deficient about the African­ American students and the Hispanic students who are admitted under the top 10 percent plan,” he said. “They’re not dynamic. They’re not leaders.  They’re not change agents. And I don’t know what the basis for that is.”

He went on to say that the school is assuming that if a minority student was accepted under the 10 percent plan it’s because they had to compete with fewer white and Asian students.

“It’s really a pernicious stereotype,” he said.

But Garre argued that’s why the state’s top 10 percent plan is so flawed – the way it admits minority students is by admitting those students from lower­ performing, racially identifiable schools.

Alito asked why UT doesn’t consider that a benefit.

“Wasn’t that the ­­reason for adopting affirmative action in the first place because there are people who have been severely disadvantaged through discrimination and ­ lack of  wealth, and they should be given a benefit in admission?”

Though Garre said UT definitely wants those students, it wants students from other perspectives too.

“The purpose of the holistic review plan is to take into account all considerations,” he said.