U.S. Supreme Court

Supreme Court considers affirmative action in 'contentious' and 'tense' oral arguments

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Justice Anthony M. Kennedy questioned Wednesday whether a case challenging affirmative action in college admissions should be returned to lower courts once again for more evidence about the need for such a program.

By the end of the Supreme Court oral arguments, however, Kennedy appeared to think the Supreme Court should proceed to decide the case. The New York Times, the Washington Post and the Los Angeles Times have stories.

Kennedy wrote the decision more than two years ago remanding the challenge to the admissions program at the University of Texas at Austin. At that time, he said the reviewing court should not uphold the program unless it was satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.

Now he is at center stage again as the likely deciding vote in the case brought by Abigail Fisher, a white woman who was denied admission to the university in 2008.

Justice Elena Kagan isn’t participating in the case, and a Kennedy opinion siding with the university would likely produce a tie vote. That would have the effect of leaving in place the appellate ruling upholding the program on remand.

The University of Texas at Austin accepts the top 10 percent of students at each of the state’s high schools. That accounts for about 75 percent of its admitted students. The rest of the students are chosen in a way that considers race as one factor.

The New York Times called the oral arguments on Tuesday “unusually long and tense,” while the Washington Post labeled them “contentious.” Justice Sonia Sotomayor led liberal justices in appearing to defend the policy, while conservative justices expressed skepticism about affirmative action, according to the Los Angeles Times.

“What unique perspective does a minority student bring to a physics class?” Chief Justice John G. Roberts Jr. asked the university lawyer.

ABA President Paulette Brown attended the oral arguments. In a media statement, Brown called arguments supporting the admissions program “extremely convincing.”

“Despite considerable progress in terms of diversity and inclusion,” Brown said, “admissions policies that consider race as one factor among many remain crucial for the advancement of racial and ethnic diversity at colleges and universities and other similar institutions.”

Brown noted the ABA submitted an amicus brief (PDF) and said the case is “of paramount importance to the legal profession.” Brown said the brief emphasized that admissions policies can play a vital role “in breaking down implicit racial bias and stereotypes that too often result in racially disparate outcomes in our justice system and in areas of public policy where lawyers play a pivotal role.”

Brown also said admissions policies like the one at UT-Austin can increase the number of minority students in the pipeline to law schools and the legal profession.

The case is Fisher v. University of Texas

Day of oral arguments corrected on Dec. 10

Related article:

ABAJournal.com: “Chemerinsky: 2 Texas cases before SCOTUS could have big implications for race in the US”

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