By Mark O’Brien
Impunity Watch Reporter, North America

WASHINGTON, United States — For the first time since 2003, the U.S. Supreme Court on Wednesday considered the role affirmative action and racial diversity should play in the admissions policies of colleges and universities.

The case revolves around the University of Texas and its efforts to reach a “critical mass” of underrepresented, minority students.  Abigail Fisher, a white applicant, contended the university admitted less qualified minority students over her.

According to Bloomberg News, the practice at the University of Texas is to admit three-quarters of its entering class based on high school rank, ensuring admission to top performers at predominantly black and Hispanic schools.  For the rest of the freshman class, race is a factor in admission.  Fisher’s lawyers argued race should not be considered for this last quarter of enrollees because the class-rank method is already successful.

The central issue in the case, according to questioning by Justice Sonia Sotomayor, is “[W]hen do we stop deferring to the university’s judgment that race is still necessary?” she asked.  “That’s the bottom line of this case.”

According to New York Times reporter Adam Liptak, the questioning was particularly focused.  He reported that Justice Anthony Kennedy, whose vote likely would determine the outcome, asked questions indicative of “discomfort with at least some race-conscious admissions programs.”

“What you’re saying is what counts is race above all,” Kennedy said with regard to the University of Texas’s efforts to enroll privileged minorities.

Liptak reported that Kennedy then asked whether the university’s racial preferences violated the constitution, before proposing to answer his own question.

“Are you saying that you shouldn’t impose this hurt, this injury, for so little benefit?” he asked.

Among those in the gallery watching the oral arguments was retired Justice Sandra Day O’Connor.  She wrote the majority opinion in Grutter v. Bollinger, the 2003 case that upheld the use of race in the University of Michigan’s law school admissions practices because colleges had an interest in promoting diversity and avoiding isolation by reaching a “critical mass” of minority students.

Todd Gillman of the Dallas Morning News reported that “Justice Stephen Breyer expressed concern that if the court overturns the Grutter precedent, then it would be left to craft new guidelines for countless college admissions officers to interpret, with thousands of lower court judges looking over their shoulders.”

Affirmative action has been widely used at colleges and universities since the civil rights era in the 1960s in order to integrate predominately white campuses.  Most schools now consider race in admissions, but some predict that might change soon.

“It’s just a matter of time before the use of race is restricted [or] prohibited,” former University of California Board of Regents member Ward Connerly told Bloomberg News.  He led a successful effort to stop the use of race at public institutions in California.

Justice Elena Kagan is not taking part in the case because of her role as the Obama Administration’s brief filed in this case at the appeals court level.

For further information, please see:

Bloomberg News — Racial Balance at Risk as Supreme Court Hears Texas Plan — 10 October 2012

Dallas Morning News — Supreme Court Hears Arguments over Use of Race in Deciding UT Admissions — 10 October 2012

The Huffington Post — Fisher v. University of Texas: Supreme Court Takes Up Affirmative Action — 10 October 2012

The New York Times — A Changed Court Revisits Affirmative Action in College Admissions — 10 October 2012

The Christian Science Monitor — Supreme Court: If Affirmative Action Is Banned, What Happens at Colleges? — 10 October 2012