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In a highly contentious argument that ran well past its allotted one hour, the justices of the U.S. Supreme Court clashed over the constitutionality of a university policy that considers race as a factor in admissions decisions.

Court seems split over affirmative action policy

In a highly contentious argument that ran well past its allotted one hour, the justices of the U.S. Supreme Court clashed over the constitutionality of a university policy that considers race as a factor in admissions decisions.

Three of the eight justices that heard oral arguments in Fisher v. University of Texas at Austin (Justice Elena Kagan recused herself) expressed open doubt that the policy passed muster under the Equal Protection Clause, and Justice Clarence Thomas — who didn’t speak during the arguments — could hold a similar view. Three justices seemed prepared to uphold the measure. That means the fate of the plan, as well as similar affirmative action policies across the nation, could rest with one justice: Justice Anthony M. Kennedy.

Should Kennedy side with the court’s more conservative bloc, consisting of Chief Justice John G. Roberts Jr., Justice Antonin G. Scalia, Justice Samuel A. Alito Jr., and Thomas, the policy will likely be struck down 5-3. However, a vote with the more liberal members of the bench would create a 4-4 tie, allowing the 5th Circuit ruling upholding the measure to stand. The decision is expected later this term.

The case stems from a lawsuit filed by two white applicants to the University of Texas at Austin who were denied admission. The plaintiffs claimed that the school’s policy, which considers race as one factor in a multi-tiered and complex admissions formula, violated their equal protection rights.

The school countered that its policy, adopted after the court’s ruling in Grutter v. Bollinger, which upheld a University of Michigan Law School policy that considered race as one factor in a holistic admissions decision-making process, was similar and was narrowly tailored enough to meet the school’s compelling interest in achieving diversity in its student body and reflecting the racial demographics of the state.

The 5th Circuit upheld the policy, holding that it was “supported by the ‘serious, good faith consideration’ required by Grutter.” An en banc panel denied rehearing.

The Supreme Court granted the rejected students’ petition for certiorari.

Defining the ‘critical mass’

Justice Ruth Bader Ginsburg asked Washington D.C. attorney Bert W. Rein, who represented the plaintiffs, to address the issue of whether the students had standing to sue: “If the injury is rejection by the University of Texas and [if], no matter what, [they] would not have been accepted, then how is the injury caused by the affirmative action program?”

Rein said the injury was “the use of a system which denied equal treatment,” a “constitutional injury” sufficient to establish standing.

On the merits, Ginsburg pressed Rein again.

“It seems to me that this program is certainly no more aggressive than the one in Grutter,” Ginsburg said. “In fact, it’s more modest.”

Rein disagreed. “In order to satisfy Grutter, you first have to say that you are not just using race gratuitously, but it is in the interest of producing a critical mass of otherwise underrepresented students.”

When Justice Sonia M. Sotomayor pointed to demographic data showing a modest increase in the percentage of minority students at the school, though it still lagged behind the state population percentages, Rein said: “We don’t believe that demographics are the key to underrepresentation of a critical mass.”

When Rein focused on the fact that the university is required by law to accept the top 10 percent of graduating students at any Texas school, Kennedy, the likely swing voter, asked about the effect of the plan.

“You argue that the university’s race-conscious admission plan is not necessary to achieve a diverse student body because it admits so few people, so few minorities, and I had trouble with that reading of the brief,” Kennedy said. “I said, ‘Well, if it’s so few, then what’s the problem?’”

“That’s part of it,” Rein said.

‘Oh, this person looks 1/32 Hispanic’

Washington, D.C., attorney Gregory G. Garre argued on behalf of the school that “taking race into account as only one modest factor among many for the individualized considerations of applicants” is constitutional under Grutter.

But Roberts and Scalia questioned how a policy considering race could reach its goal, even if it were constitutional. Garre said students self-identify race but are not required to.

Scalia wanted to know how school officials decide.

“Class by class? How do they figure out what particular classes don’t have enough? … Did they require everybody to check a box or they have somebody figure out, ‘Oh, this person looks 1/32 Hispanic’ and that’s enough?”

Roberts honed in on a separate but related point. He wanted to know the critical mass of minority students the school was working toward. He said the court’s task was to decide whether the use of race is narrowly tailored to achieving the “critical mass.”

“We should stop calling it mass. Call it a cloud or something,” Scalia said, drawing laughs.

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com.

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