New York Times

October 10, 2012

Justices Weigh Race as Factor at Universities

By ADAM LIPTAK

WASHINGTON — With the future of affirmative action in higher education hanging in the balance, the Supreme Court on Wednesday grappled with two basic questions, repeated by Chief Justice John G. Roberts Jr. in various forms at least a dozen times.

He wanted to know how much diversity was enough. And he wanted to know when colleges would be able to achieve an acceptable level of diversity without using racial preferences.

“What is the critical mass of African-Americans and Hispanics at the university that you are working toward?” Chief Justice Roberts asked a lawyer for the University of Texas at Austin. The chief justice never received a specific answer from the university’s lawyer or from one representing the federal government.

Their reluctance to answer illuminated a tension in the court’s precedents, which reject quotas but allow public universities to use race in admissions decisions as but one unquantifiable factor among many.

Had the lawyers responded to the chief justice by proposing a percentage goal, they would have run headlong into cases prohibiting quotas. In failing to offer a number, though, they left the court with very little to do in the face of precedents requiring judges to look closely whenever the government draws distinctions among people based on race.

“You won’t tell me what the critical mass is,” Chief Justice Roberts told the university’s lawyer, Gregory G. Garre. “How am I supposed to do the job that our precedents say I should do?”

The questioning on Wednesday from the chief justice and his colleagues was by turns caustic, exasperated and despairing.

Justice Sandra Day O’Connor, who retired in 2006, attended the argument and listened attentively as her former colleagues debated whether to reaffirm, limit or overturn one of her legacies, her majority opinion in Grutter v. Bollinger, the 5-to-4 decision in 2003 that allowed public universities to take account of race as part of a “holistic review.”

Her replacement by Justice Samuel A. Alito Jr., who has been hostile to affirmative action programs, may have altered the balance on the court on whether such admissions programs are constitutional.

The member of the court who now probably holds the decisive vote, Justice Anthony M. Kennedy, tipped his hand only a little, asking a few questions that indicated discomfort with at least some race-conscious admissions programs.

Those questions, along with his voting record, suggested that Justice Kennedy may be prepared to limit the Grutter decision. He told Mr. Garre that he was uncomfortable with the university’s efforts to attract minority students from privileged backgrounds.

“What you’re saying,” Justice Kennedy said, “is that what counts is race above all.”

He asked a lawyer for Abigail Fisher, a white woman who was denied admission to the university and who filed the lawsuit before the justices, whether the modest racial preferences used by the university crossed a constitutional line. Then he proposed an answer to his own question.

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

Justice Sonia Sotomayor summarized the central question in the case, echoing Chief Justice Roberts. “At what point — when — do we stop deferring to the university’s judgment that race is still necessary?” she asked. “That’s the bottom line of this case.”

In the 2003 decision, Justice O’Connor wrote that she expected it to stand for 25 years. “I know that time flies,” Justice Stephen G. Breyer said on Wednesday, “but I think only nine of those years have passed.”

By the conclusion of the argument, it seemed tolerably clear that the four members of the court’s conservative wing were ready to act now to revise the Grutter decision.

The court’s more liberal members said there was no reason to abandon the earlier framework. “What is it we’re going to say here that wasn’t already said in Grutter?” Justice Breyer asked.

Justice Elena Kagan disqualified herself from the case, Fisher v. Texas No. 11-345, presumably because she had worked on the case as solicitor general. That leaves open the possibility of a 4-to-4 tie, which would have the effect of affirming a lower-court decision upholding the Texas program.

Ms. Fisher, 22, recently graduated from Louisiana State University and works as a financial analyst in Austin, Tex. Her lawyer, Bert W. Rein, was questioned closely by the more liberal justices about whether she suffered the sort of injury that gives her standing to sue.

They also pressed the point that the Texas program should pass muster under the 2003 decision. “It seems to me that this program is no more aggressive than the one in Grutter,” Justice Ruth Bader Ginsburg said. “In fact, it’s more modest.”

Three-quarters of applicants from Texas are admitted to the university under a program that guarantees admission to the top students in every high school in the state. That program, which has produced substantial diversity, is not directly at issue in the case.

Students from Texas who missed the cutoff, like Ms. Fisher, and those from elsewhere are considered under standards that take account of academic achievement and other factors, including race and ethnicity.

Mr. Garre said the percentage program worked to create diversity only because “by and large, the minorities who are admitted tend to come from segregated racially-identifiable schools.” Justice Alito responded by questioning a passage in Mr. Garre’s brief, in which he told the justices that the university should be free to supplement that pool with more privileged minority students, thus “increasing diversity within diversity.”

“I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds,” Justice Alito said.

Justice Kennedy also seemed taken aback by the approach. “You want underprivileged of a certain race and privileged of a certain race,” Justice Kennedy told Mr. Garre. “So that’s race.”

A decision forbidding the use of race at public universities would almost certainly mean that it would be barred at most private ones as well under Title VI of the Civil Rights Act of 1964, which forbids racial discrimination in programs that receive federal money.

Justice Sotomayor told Mr. Rein, the lawyer representing Ms. Fisher, that she sensed an agenda. “You don’t want to overrule Grutter,” she said. “You just want to gut it.”