Affirmative Action Faces Scrutiny in Supreme Court

Affirmative Action Faces Scrutiny in Supreme Court

October 25, 2012

The U.S. Supreme Court heard oral arguments on Wednesday in a lawsuit challenging race-conscious admissions policies at the University of Texas at Austin, reports the Chronicle of Higher Education.

Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor, who have backed affirmative action programs in the past, posed questions sympathetic to the university's position or critical of the suit challenging the consideration of race and ethnicity in admissions decisions. Although Justice Elena Kagan was also expected to support the University of Texas position, she recused herself from the case because of her prior work on the issue while serving as U.S. solicitor general.

Of the remaining justices, four others “ Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia, and Clarence Thomas “ have been dubious of affirmative action in the past. Those who spoke asked questions that suggested skepticism of the way the University of Texas has used race and ethnicity. Many of the questions from these justices appeared to focus on the fairness of affirmative action and the extent to which the Texas plan is "narrowly tailored," as required by previous Supreme Court questions. There were questions about students of mixed race and ethnicity, about diversity within minority groups, and about how to measure "critical mass," according to the Chronicle.

Justice Anthony Kennedy, widely regarded as the court's key swing vote in the case, remained on the sidelines through much of the proceedings. He posed a few questions that intended to clarify, as opposed to challenge, the arguments offered on both sides of the discussion.

Based on views expressed in his past rulings, Justice Kennedy could join the other conservatives on the bench in overturning the Supreme Court's 2003 Grutter v. Bollinger decision, in which a 5-to-4 majority held that race-conscious admission policies could serve a compelling government interest. It appears more likely, however, that he will reject Texas' policies as falling outside the guidelines set forth by the Grutter decision, leaving the policies at other colleges intact, the Chronicle reported.

The court could also uphold the federal appeals court decision, which found the Texas program to be constitutional, but that possibility is seen as remote.

The U.S. Supreme Court is expected to decide the case, Fisher v. University of Texas at Austin (No. 11-345), next year.

Michelle Cormier Mott

In the Courts