Supreme Court casts doubt on affirmative action

October 11, 2012

USA Today

WASHINGTON — The use of racial preferences in university admissions appears to be in jeopardy — at least at the University of Texas, if not nationwide.

With the author of the last landmark affirmative action case, retired justice Sandra Day O’Connor, seated in the front row, the Supreme Court openly struggled Wednesday with this central question: How much racial favoritism is enough?

Programs used by university admissions offices nationwide to achieve diversity hung in the balance as the court took up the case of Fisher v. University of Texas, the latest in a long string of affirmative action cases that until now have upheld the limited use of race in college admissions.

As the justices peppered questions at lawyers for the university and for Abigail Fisher, the 22-year-old Texan who says she was denied admission to the school’s flagship campus in Austin because she was white, it became clear they were searching for a bright line that does not exist.

The court’s conservatives – who may command five votes – appeared dissatisfied with the current standard of seeking a “critical mass” of minority students. They wondered whether universities can tip the balance between two equally qualified students toward the one who is black.

“I thought that the whole point is that sometimes race has to be a tiebreaker,” said Justice Anthony Kennedy, the potential swing vote on the court and an opponent of racial preferences in the past.

Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito expressed skepticism with Texas’ effort to achieve diversity even in small classrooms, where Gregory Garre, the university’s lawyer, said minority students feel “shocking isolation.”

“What’s the logical endpoint?” Roberts asked. “When will I know that you’ve reached a critical mass?”

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