- Associated Press - Wednesday, October 10, 2012

Supreme Court justices sharply questioned the University of Texas‘ use of race in college admissions Wednesday, hearing arguments in a case that could lead to new limits on affirmative-action policies in higher education and elsewhere.

The court heard arguments in a challenge to the program from a white Texas high school student who contends she was discriminated against when the university did not offer her a spot in 2008.

The court’s conservatives cast doubt on the program that uses race as one among many factors in admitting about a quarter of the university’s incoming freshmen. The liberal justices appeared more supportive of the effort.

Justice Anthony M. Kennedy, whose vote could be decisive, looked skeptically on Texas’ defense of the program.

“What you’re saying is what counts is race above all,” Justice Kennedy said. He has never voted in favor of an affirmative-action program but has voiced support for diversity in education.

Abigail Fisher, 22, the rejected student who sued, was among the hundreds of spectators at the arguments. Also in attendance was retired Justice Sandra Day O’Connor, who wrote the majority opinion in a 2003 case that upheld the use of race in college admissions.

Changes in the court’s makeup since then, especially Justice O’Connor’s departure, could affect the outcome of the Texas case. Justice Samuel Anthony Alito Jr., her successor, has voted consistently against racial preferences since he joined the court in 2006 and appears likely to side with Ms. Fisher.

Among the liberal justices who looked more favorably on the Texas admissions system was Justice Sonia Sotomayor. She told Bert Rein, Ms. Fisher’s Washington-based attorney, that he was looking to “gut” the court’s decision handed down just nine years ago.

Justice Ruth Bader Ginsburg, who joined with Justice O’Connor in the 2003 decision — known as Grutter v. Bollinger — said, “It seems to me that this program is certainly no more aggressive than the one in Grutter. It’s more, in fact, more modest.”

The university says the program is necessary to provide the kind of diverse educational experience the high court previously has endorsed. Along with race, the university considers community service, work experience, extracurricular activities, awards and other factors as it seeks to fill out its incoming classes. The bulk of its slots go to students who are admitted based on their high school class rank, without regard to race.

In 2008, the freshman class of more than 6,600 included 1,713 black and Hispanic students. Of those, 216 were admitted under the program that is being challenged.

Opponents of the program say the university is practicing illegal discrimination by considering race at all, especially since the school achieves significant diversity through its race-blind admissions.

No one on the court Wednesday expressed opposition to diversity in education. But Chief Justice John G. Roberts Jr., Justice Antonin Scalia and Justice Alito raised repeated objections to the affirmative-action plan.

The chief justice wanted to know how the university would determine when it had a “critical mass” of diversity on campus that would allow it to end the program.

Near the end of the session, he complained, “I’m hearing a lot about what it’s not. I would like to know what it is.”

Justice Elena Kagan, who worked on the case at the Obama administration Justice Department before joining the court, is not taking part in the deliberations. A decision should come by late June.

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