By Richard Wolf & Mary Beth Marklein, USA Today
WASHINGTON - The use of racial preferences in university admissions appears to be in jeopardy -- at least at the University of Texas, if not nationwide.
With the author of the last landmark affirmative action case, retired justice Sandra Day O'Connor, seated in the front row, the Supreme Court openly struggled Wednesday with this central question: How much racial favoritism is enough?
Programs used by university admissions offices nationwide to achieve diversity hung in the balance as the court took up the case of Fisher v. University of Texas, the latest in a long string of affirmative action cases that until now have upheld the limited use of race in college admissions.
As the justices peppered questions at lawyers for the university and for Abigail Fisher, the 22-year-old Texan who says she was denied admission to the school's flagship campus in Austin because she was white, it became clear they were searching for a bright line that does not exist.
The court's conservatives - who may command five votes - appeared dissatisfied with the current standard of seeking a "critical mass" of minority students. They wondered whether universities can tip the balance between two equally qualified students toward the one who is black.
"I thought that the whole point is that sometimes race has to be a tiebreaker," said Justice Anthony Kennedy, the potential swing vote on the court and an opponent of racial preferences in the past.
Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito expressed skepticism with Texas' effort to achieve diversity even in small classrooms, where Gregory Garre, the university's lawyer, said minority students feel "shocking isolation."
"What's the logical endpoint?" Roberts asked. "When will I know that you've reached a critical mass?"
The lawyers seemed particularly focused on Justice Anthony Kennedy, who dissented from O'Connor's 2003 opinion in Grutter v. Bollinger, the University of Michigan case that upheld a limited use of racial preferences. That case remains the law of the land, but Kennedy and the other four conservative justices, including Clarence Thomas, could overrule it in this case.
Solicitor General Donald Verrilli, defending the university's use of affirmative action, directed much of his argument directly to Kennedy. "There's no quota" in the university's use of racial preferences, Verrilli said. "Everyone competes against everyone else."
But Kennedy said the university's effort to get students of varying backgrounds, even within races and ethnic groups, shows that it's putting race first. "You want underprivileged of a certain race and privileged of a certain race," Kennedy said. "So that's race."
The case hearkens back to 1950, when the Supreme Court backed Heman Sweatt's effort to be enrolled at the University of Texas. Four years later came the landmark case of Brown v. Board of Education outlawing public school segregation.
"The issue back then was about excluding African Americans, and we were on the wrong side of history," said university President Bill Powers. "The University of Texas lost that case, but the nation won."
Attorneys for the university argued that race is never considered alone, only as part of a holistic approach that takes a variety of factors into consideration. They admitted, however, that one goal is to increase the percentage of black students on campus.
The school uses a "Top 10 Percent" plan through which students in the top 10% of their high school graduating classes are automatically admitted to the state university of their choice. That has helped schools boost racial diversity, primarily because most of the state's public high schools are segregated by race and ethnicity.
But because that does not create a "critical mass" of racial groups, the school also considers race in filling out the rest of each year's class. As a result of that policy, enacted after the Michigan decision, black enrollment grew only slightly, from 4% to about 6%. But Fisher's attorney, Bert Rein, noted nearly 40% of students are minorities, about half of them Asian Americans.
"What we are concerned about ... is universities like UT and many others have read (the Michigan decision) to be 'green light, use race, no endpoint,'" Rein said. "That unchecked use of race ... needs to be corralled."
Conservatives who have backed Fisher's case are hoping the court won't just throw out Texas' system but overrule the 2003 decision - in essence, eliminating racial preferences in college admissions. That would force both public and private schools to change the way they give preferences to blacks and other minorities whom they consider underrepresented on their campuses.
Proponents of affirmative action - including many University of Texas students who traveled to Washington for a rally outside court Wednesday - hope the school's program will be upheld. The court also could strike it down in a more narrow fashion that does not affect other schools.
The high court has taken a turn to the right since the Michigan case was decided. Now, five justices are on record opposing the practice, with Kennedy considered the crucial fifth vote.
Justice Elena Kagan has recused herself from the case, presumably because she was involved with it while serving as solicitor general in 2009-10.
If the Texas plan is declared unconstitutional, Marie Bigham, director of college counseling at the highly diverse Greenhill School in the Dallas suburb of Addison, predicts a chilling effect.
"My students of color, I worry they're going to say that 'these places don't value what I bring,' " she said. White students, too, will look elsewhere, she said.
"When my students are shopping for colleges, (diversity) is an important data point for them," Bigham said. "We're going to lose out on a lot of great kids."
Outside court, Fisher spoke just one sentence to reporters before turning questions over to Rein. "I hope the court realizes that a student's race and ethnicity should not be considered" in admissions, she said.
Rein praised Fisher, who has since graduated from Louisiana State University, for having the "courage and perseverance to stand up for what was right." He said she will continue to suffer the consequences of not having a degree from Texas' top public university.
"It is critical to be a University of Texas graduate in Texas," he said. "She can't have that back."