Justices suggest University of Texas is arguing race counts ‘above all’ in case that could reshape law on college admissions

By Chris McGreal

Conservatives on the US supreme court expressed strong doubts about affirmative action at the University of Texas on Wednesday in a case that could reshape 35 years of legal rulings on the use of racial preferences in education.

A white woman, Abigail Fisher, is suing the university for discrimination after she said she was denied a college place because African American and Hispanic students were favoured in order to ensure diversity. Fisher’s lawyers accused the University of Texas of “blatant racial balancing”.

The university said that Fisher is “asking this court to move the goal posts on higher education in America – and overrule its precedent going back 35 years”.

Texas law allocates 75% of places at the university to the best performing students in each state-run school. The remaining places are assigned by competition, in which race plays a part alongside other factors such as school grades, economic background and geography as the university says it attempts to create a diverse student body.

Much of the questioning centred on how the University of Texas policy fits with a 2003 ruling in another case that has set the standard on the role race plays in admissions policy for the past decade. That ruling upheld the use of race as a factor in admissions policy to ensure a diverse student body, but said it cannot be the decisive component, and said quotas or a points system involving ethnicity are barred.

Conservative justices pressed the university’s lawyer, Greg Garre, to say at what point the university would reach a “critical mass” of minority students and no longer need racial preferencing. Garre said the university had no figure in mind. Some of the justices balked at that. Justice Anthony Kennedy said that Texas was arguing that race counts “above all.”

Two of the more liberal justices, Ruth Bader Ginsburg and Sonia Sotomayor, suggested that Fisher did not have a case because she would have failed to gain a place at the University of Texas even if race had not been a factor, and that she has since graduated from another college.

Fisher’s lawyers said that she had suffered damage nonetheless.

The university has strongly defended the benefits of diversity in the classroom. It is backed by other colleges that have filed briefs with the court, including Harvard and Yale, as well as big business interests, such as Microsoft and Walmart.

The Obama administration also supports the University of Texas, saying there is a compelling national security interest in ensuring a wide variety of students graduate from university in part to meet the recruiting needs of the military, CIA and FBI.

The US solicitor general, Donald Verrilli, backed the university’s argument that race is only a contributory, not a deciding factor, in admissions.

“Race is not considered on its own, and it is never determinative of an applicant’s admission by itself,” Verrilli said. “Rather, race is one of a number of contextual factors that provide a more complete understanding of the applicant’s record and experiences. That is a far cry from impermissible racial balancing.”

The centre of gravity of the court has shifted further to the right since the 2003 ruling. Five years ago, four of the judges – John Roberts, the chief justice, Antonin Scalia, Clarence Thomas and Samuel Alito – put their names to an opinion that said: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

The issue will be decided by eight justices after the ninth, Elena Kagan, recused herself because she had a hand in the case in her previous role as solicitor general.

If Kennedy sides with the conservative view, that could lead to a radical change to the legal status of affirmative action. If the court divides evenly on the issue then the lower court ruling, which upheld the university’s admissions policy, will stand.

Scalia pushed back against the idea that a university’s ethnic make-up should reflect the demographics of the state it is in.

Statistics show Latinos are significantly under-represented at the University of Texas, while the proportion of white and African Americans students is broadly in line with the demographics of the state.

The latest intake of students was 18.4% Hispanic, 49.8% white, 4.5% African American and 15.2% Asian American.

According to the 2010 census, Hispanics make up 37.6% of Texas’s 25 million residents. Whites account for 45.3% and African Americans 3.8%. Less than 1% are of Asian descent.

One of the arguments advanced by Fisher’s lawyers is that the university’s admissions policy is a breach of the equal protection clause of the US constitution’s 14th amendment, written after the civil war to overrule an 1857 supreme court decision that deprived black people of American citizenship. The equal protection clause was the basis for the supreme court’s 1954 ruling, Brown v Board of Education, which initiated the desegregation of education.

Now, Fisher’s lawyers say, it is white people who are subject to racial discrimination.

“If any state action should respect racial equality, it is university admission,” they said in a submission to the supreme court. “Selecting those who will benefit from the limited places available at universities has enormous consequences for the future of American students and the perceived fairness of government action.”

But the Constitutional Accountability Centre, in its brief to the court, argues that the 14th amendment permits “race-conscious measures to foster equality”.

“The text permits the government to use race to help realise equal protection under the law, and at the very same time, the framers of the 14th amendment enacted numerous race-conscious measures to help ensure equality,” said the centre’s civil rights director, David Gans.

“The 14th amendment came right after the civil war. Slavery was dismantled. There were efforts to integrate African Americans and to do so on the basis of equality, and the framers recognised you need to use race to help foster equality. The signature and most successful of those early race conscious measures were trying to ensure equality of education for African Americans.”