WASHINGTON -- The University of Texas at Austin needs a fourth Supreme Court justice to preserve its ability -- and that of other colleges -- to consider race and ethnicity in admissions decisions. If one exists, he didn't reveal himself on Wednesday, when the U.S. Supreme Court heard arguments in a challenge to the university's approach to affirmative action.
Three justices who have in the past backed affirmative action programs -- Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor -- all asked questions sympathetic to the university's position or critical of the suit challenging the consideration of race and ethnicity in admissions decisions. A fourth justice who might have been expected to support the University of Texas position -- Justice Elena Kagan -- has recused herself from the case, apparently because she worked on the issue while serving as U.S. solicitor general prior to joining the court.
Of the remaining five justices, all of whom have in the past been dubious of affirmative action, those who spoke asked questions that suggested skepticism of the way the University of Texas has used race and ethnicity. And that apparently skeptical group includes Justice Anthony Kennedy, the jurist upon whom affirmative action defenders have placed the most hope. (A 4-4 tie would uphold the ruling in this case of a federal appeals court, which found the Texas program to be constitutional.)
Many of the questions from these justices appeared to focus on the fairness of affirmative action and the extent to which the Texas plan is "narrowly tailored," as required by previous Supreme Court questions. There were questions about students of mixed race and ethnicity, about diversity within minority groups, about how to measure "critical mass," and the tone of many of these questions suggested a lack of confidence in how Texas (and by extension many other colleges and universities) consider race in admissions.
Background on the case:
It's impossible, of course, to predict the outcome of Supreme Court decisions from oral arguments. Many pundits who watched the oral arguments over President Obama's health-care law predicted that the Supreme Court would overturn the legislation. And there is a tradition of justices asking tough questions without necessarily tipping their hand on how they plan to vote. William Powers Jr., president of the University of Texas at Austin and himself a lawyer, made that argument to reporters in a briefing after the oral arguments. It is "typical of judges," he said, to ask tough questions of all sides to "clarify the positions," he said.
Partisans of both sides pointed to questions that supported their positions. But several knowledgeable observers who are not allied with one side or the other said that they came away from the oral arguments thinking that affirmative action may be on the ropes. The well-respected SCOTUSblog  wrote after the arguments: "Affirmative action is alive but ailing, the idea of 'critical mass' to measure racial diversity is in very critical condition, and a nine-year-old precedent may have to be reshaped in order to survive."
From Michigan to Texas
The Supreme Court last took up the consideration of race in admissions in 2003, ruling in two cases involving the University of Michigan. In one case, the Supreme Court rejected admissions systems that it viewed as effectively creating separate tracks for consideration of different racial and ethnic groups. But the Supreme Court upheld admissions systems that considered race along with a variety of factors to promote diversity in the student body. The decision also upheld the idea that diversity contributes to the educational experiences of all students. but also encouraged colleges to consider race-neutral methods and to work toward a time when consideration of race might not be needed.
The case the Supreme Court heard Wednesday is over whether the University of Texas is exceeding the right granted by the 2003 decision. The plaintiffs -- on behalf of Abigail Fisher, a white woman who was rejected by UT Austin -- argue that Texas doesn't need to consider race in admissions. These critics of affirmative action say that because Texas uses a statewide "10 percent" plan – in which students in the top 10 percent of their high school classes are automatically admitted to the public college of their choice -- the state’s flagship university can achieve a diverse student body without race-based policies. (Many Texas high schools have enrollments that are overwhelmingly made up of members of particular racial or ethnic groups, so the plan provides a steady stream of black and Latino students to UT Austin.)
The university and other defenders of affirmative action argue that just because a university can achieve some diversity without the consideration of race and admissions does not mean that it may not also consider race and ethnicity to achieve a higher level of diversity.
One key question about the case this year is whether the Supreme Court will decide it in a way that focuses on the circumstances in Texas (which are unusual in that most states don't have "percent" plans), or will focus on general issues associated with consideration of race in admissions.
Many of the questions asked in apparent skepticism about the University of Texas policy could have been applied to many colleges and universities. And some of the questions seemed to suggest a view that consideration of race makes arbitrary distinctions among students.
Chief Justice John Roberts asked a series of questions of Gregory Garre, the lawyer who spoke on behalf of the University of Texas, about the boxes that applicants check. "Should someone who is one-quarter Hispanic check the Hispanic box or some different box?" the chief justice asked. When told that there was a multiracial category, Justice Roberts pressed on. "What about one-eighth?" he asked. He then asked if the university attempts to verify the racial and ethnic backgrounds reported by students, and Garre said that Texas does not (and noted that colleges generally do not do so). Justice Roberts then asked how the university could know whether it had any level of diversity that it said it wanted to achieve.
Justice Antonin Scalia -- whose questions were arguably the most hostile to the consideration of race in admissions -- then joined this discussion, noting that supporters of affirmative action have argued that critical masses of minority students are needed to assure diversity in various classes and programs. "How do they figure out that particular classes don't have enough? What, somebody walks in the room and looks them over to see how looks -- who looks Asian, who looks black, who looks Hispanic?"
And although Garre insisted several times that students voluntarily self-identify in the admissions process (or opt not to) and that students don't go into classes with any sort of racial label, Scalia returned to the issue: "Did they require everybody to check a box or they have somebody figure out, oh, this person looks 1/32nd Hispanic and that's enough?"
From there the justices went to questions about the relative fairness of considering (in a positive way) black and Latino students from wealthy families.
Justice Samuel Alito Jr. said: "I thought the whole purpose of affirmative action was to help students who come from underprivileged backgrounds," and then said that he understood the Texas policies to be as likely to help a black and Latino child of successful professionals as one in poverty. And he asked why such financially favored students (Justice Alito suggested some are in the top 1 percent of income) "deserve a leg up."
When Garre answered that the University of Texas wants "minorities from different backgrounds," Justice Kennedy interjected: "So what you are saying is that what counts is race above all."
Those words from Justice Kennedy -- if they reflect his thinking on this case -- could be quite damaging to the University of Texas position. Generally, Kennedy has been extremely skeptical of government programs (in a variety of settings, not just education) in which race is a dominant factor in decision-making. And when Garre denied that he was saying race was the factor that mattered "above all," Justice Kennedy indicated he was not persuaded. "You want underprivileged of a certain race and privileged of a certain race. So that's race," he said.
Many other questions focused on "critical mass," and the affirmative action skeptics fired queries at Garre, expressing frustration that he wouldn't stipulate some desired level of critical mass, or outline what critical mass would look like in a state other than Texas.
The topic of critical mass also came up with regard to Asian-American students. The affirmative action system in Texas does not favor those students in the same way that it seeks out black and Latino students; however, Texas does place a priority on some factors  -- such as whether languages other than English are spoken at home -- that could favor some Asian-American applicants. While Texas allows applicants to specify specific nationalities, the main form gives "Asian-American," but not all of the Asian-American subgroups -- a point on which Justice Alito focused.
"How do you justify lumping together all Asian-Americans?" Justice Alito asked. "Do you have a critical mass of Filipino Americans? Cambodian Americans?"
Enforcing 'Grutter' or Gutting It?
Bert Rein, who argued the case for Fisher, also faced his share of tough questions (though largely from different justices). Justice Breyer pressed him on whether Fisher is seeking to overturn the Grutter decision (the 2003 ruling that upheld the right of public colleges to consider race in admissions), and the judge asked the question in a way suggesting that it was premature for the Supreme Court to be returning to affirmative action.
"Grutter said it would be good law for at least 25 years, and I know that time flies, but I think only 9 of those years have passed," Justice Breyer said. "[W]hy overrule a case into which so much thought and effort went and so many people around the country have depended?"
Rein replied that his argument was being made "carefully" not to insist that Grutter be thrown out. Rather, he suggested, Texas was exceeding the rights that that decision granted to colleges.
Justice Sotomayor's responses on the issue suggested she was not convinced. "So you don't want to overrule Grutter. You just want to gut it," she said. When Rein said "Excuse me?" Sotomayor repeated herself. "You just want to gut it."
Since Fisher's briefs argue that Texas has enough diversity without considering race in admissions, Sotomayor said, they were effectively arguing that many colleges and universities have no right to consider race in the way Grutter allows. "Now you want to tell universities that once you reach a certain number, you can't use race anymore," she said.