The justices of the US Supreme Court split sharply on Wednesday
over whether to approve the use of racial preferences for admission
to the University of Texas at Austin.
As in prior cases dealing with the divisive issue of race and
college admissions, liberal members of the high court defended the
Texas affirmative-action plan while conservatives were skeptical and
sometimes hostile to it.
After an hour and 20 minutes of oral argument, it was not clear
precisely how the justices might resolve the case. But it appeared
there were five votes on the conservative side of the court to
fashion a majority opinion.
At several points during the argument, Justice Anthony Kennedy,
considered the most likely swing vote in the case, expressed concern
or otherwise questioned arguments supporting the Texas plan.
When Solicitor General Donald Verrilli insisted that the Texas
plan might not necessarily involve a racial preference under the
schools holistic selection process, four justices including Justice
Kennedy pushed back.
I dont understand this argument, he said. I thought the whole
point is that sometimes race has to be a tiebreaker and you are
saying that it isnt.
Kennedy added: Well then we should just say you cant use race,
dont worry about it.
The case could become a major legal precedent should the justices
impose significant new limits on the use of race in college
admissions. Such a ruling would force admissions officers and
affirmative-action officials across the country to develop race-
neutral methods to fill their class rosters.
The last major test of the issue was in 2003 when the court
upheld by a 5-to-4 vote the use of race in admissions to the
University of Michigan Law School.
Retired Justice Sandra Day OConnor, who provided the crucial
fifth vote in that case, attended Wednesdays oral argument, seated
with court personnel and lawyers near the front of the courtroom.
Meanwhile, on the sidewalk outside the court, scores of
demonstrators chanted and cheered in support of affirmative action.
At issue in the case is whether the University of Texas is
justified in its use of race as one of many factors in deciding
which students to admit to the incoming freshman class.
The school admits 75 percent of its new students under a state
law that requires the university to offer places to every student in
Texas who graduates in the top 8 to 10 percent of his or her high
Because of segregated housing patterns in the state, the program
accounts for a significant level of minority enrollment at the
states flagship university. School officials sought to fine-tune the
racial makeup of the entering class by using a multifactor
admissions process that includes consideration of the candidates
race for the remaining 25 percent of entering freshman.
The case stems from a lawsuit filed by a white student, Abigail
Fisher, who was denied admission.
Ms. Fisher charged that less qualified black and Latino
candidates were admitted in violation of her constitutional right to
Lawyers for the university counter that the Texas affirmative-
action plan complies with the terms approved in the 2003 Michigan
Law School case. In that decision, the Supreme Court approved the
limited use of race in affirmative-action programs designed to
foster a critical mass of minority enrollment.
Gregory Garre, arguing for the University of Texas, said that
while the states top 10 percent admissions program significantly
boosted minority enrollment, it could not produce a truly diverse
Taking the top 10 percent of a racially identifiable high school
may get you diversity that looks OK on paper, but it doesnt
guarantee you diversity that produces educational benefits on
campus, he told the justices.
What Texas was seeking, he said, were enough black and Hispanic
students to create a welcoming environment among minorities and
greater opportunities for cross-racial interactions on campus and in