Supreme Court Considers Constitutionality of Affirmative Action

For the second time in three years, the U.S. Supreme Court Wednesday heard arguments in Fisher v. University of Texas, a case that could decide the fate of affirmative action in college admissions.

The suit, which was filed by Abigail Fisher in 2008, challenges the use of race in the University of Texas (UT) at Austin’s admission decisions. The court last heard the case in 2013, and instead of rendering a verdict, requested that the lower court reconsider it.

Now back at the Supreme Court, the case is set to be decided by June — with four justices avowedly against the use of race in college admissions, four who seem for it, and one, Justice Anthony Kennedy, who is suspicious of affirmative action programs. Justice Elena Kagan, who previously worked on the case as solicitor general of the U.S., recused herself from the case.

Remarks by Justice Antonin Scalia caused tension in the courtroom Wednesday, as he questioned whether admitting African American students to UT-Austin, one of the state’s most prestigious universities, is in their best interest.

“There are those who contend that it does not benefit African Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less advanced school, a … slower-track school, where they do well,” he said.

“One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas,” Scalia continued. “They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.”

Gregory G. Garre, a lawyer for UT-Austin, said that the university’s record proves otherwise. “African Americans and Hispanics coming in through the holistic review plan have performed well academically at the University of Texas,” he said.

The university — along with other public universities in Texas — guarantees admission to students graduating in the top 10 percent of their high school class; UT-Austin officials claim this policy helps increase diversity at the school.

Fisher, who had applied for and was denied undergraduate admission to UT-Austin in 2008, alleged in her suit that the university had discriminated against her on the basis of her race, arguing that that was a violation of the Equal Protection Clause of the 14th Amendment.

Experts on this case agree that Kennedy holds the crucial vote — although he has never voted to uphold an affirmative action plan. Most of his time Wednesday was spent debating whether UT-Austin should be allowed to submit more evidence to justify its use of race in admissions; he also expressed frustration over the court’s hearing the case, saying that it is “just arguing the same case … as if nothing had happened.”

Other justices spent their time challenging the lawyers defending the university, with Chief Justice John F. Roberts Jr. questioning the value of diversity in some academic settings.

While Supreme Court arguments typically last an hour, Roberts announced on Wednesday that the court was adding an additional 25 minutes; the session ended up lasting 95 minutes.

In closing, Garre encouraged the court to embrace diversity: “Now is not the time and this is not the case to roll back student body diversity in America.”

Solicitor General Donald B. Verrilli Jr., who is in favor of the Texas top 10 percent plan, said that the decision in this case will have far-reaching implications.

“What the court is going to say in this case obviously is going to apply eventually to every university in the country,” he said.