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From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.
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And I'm Audie Cornish. The Supreme Court has ruled twice on the issue of affirmative action in higher education. Today, a third round of arguments. Back in 1978 - and again, in 2003 - the court said state colleges and universities may consider race and ethnicity as one of many factors in college admissions, as long as there are no quotas.
SIEGEL: Well, now, the composition of the court has changed. And as we hear from NPR legal affairs correspondent Nina Totenberg, today's arguments appeared to raise extreme danger signs for affirmative action in higher education.
NINA TOTENBERG, BYLINE: At issue today was the admissions program at the University of Texas in Austin, where 75 percent of applicants are automatically admitted based on high school class rank. Texas law guarantees that students who graduate in the top 10 percent of their class, get in. The other 25 percent are admitted under a system that includes grades, board scores, essays; and other factors like leadership, awards, community activities, economic circumstances and race.
On the steps of the Supreme Court today, UT President Bill Powers defended the university's approach. No university, no employer, he said, would fill all of its slots based on grades alone because the results would be senseless.
DR. WILLIAM POWERS JR.: You could have been the student body president. You could have been the winner of the state math contest. You may have the skills that any university, or any enterprise would be looking for, and you have zero chance to get into the University of Texas.
TOTENBERG: But Abigail Fisher, a white student who didn't make the cut, contends the university's consideration of race is unconstitutional.
ABIGAIL FISHER: I was taught, from the time I was a little girl, that any kind of discrimination was wrong. And for an institution of higher learning to act this way, makes no sense to me. What kind of example does this set for others?
TOTENBERG: Sitting in the courtroom today was the author of the 2003 affirmative action decision, Justice Sandra Day O'Connor. But she was in the audience. She has retired and been replaced by Justice Samuel Alito, a dedicated foe of affirmative action. Also there was the widow of Justice Thurgood Marshall, the man who led the legal fight against school segregation.
On the bench were four justices with records firmly opposed to affirmative action. The only ambiguous vote was Justice Anthony Kennedy, who has said he sees the need for diversity in education, but has never seen an affirmative action program he views as constitutional. Today, he seemed to suggest that UT's program would fare no better.
The first lawyer to the lectern was Bert Rein, representing Abigail Fisher. He told the justices that it is not necessary for them to overrule their past decisions on affirmative action. But after hearing his argument, Justice Sotomayor replied, "You don't want us to overrule our decisions. You just want us to gut them." Justice Breyer noted that two lower courts had found the UT program to meet the criteria set out previously by the Supreme Court. There were no quotas. Each applicant was considered individually. Race was not the predominant factor, and the program is time-limited.
Lawyer Rein replied that the plan was still unconstitutional because there was no definition of what constitutes a critical mass of minority students - the diversity goal the university is seeking to achieve. Justice Sotomayor, tartly, "So you have to set a quota, to define when you have achieved a critical mass; something we have said you shouldn't do?" Sotomayor, who has openly said she would never have been admitted to Princeton based solely on her academic scores, pressed Rein repeatedly. She noted that without the affirmative action program, African-American enrollment at UT was 4 percent. And today, with the affirmative action program, it is 6 percent. "That's enough for you, even though the state population is 12 percent?"
When Rein said that the state's demographics - now more than 50 percent minority - are irrelevant, Sotomayor shot back, "You can't seriously believe that." The court's conservatives, largely silent during Rein's argument, sprung to life when UT's lawyer, Gregory Garre, began.
Chief Justice Roberts: "Should the person who is one quarter Hispanic, or one-eighth, check the Hispanic box on the application?" Justice Scalia: "Or one-thirty-second?" Roberts, again: "You say that race is just one factor in admission, but it is the only factor on the cover of the applicant's file." When Scalia suggested that the university gets plenty of diversity with the 10 percent plan, Garre said flatly, "That's wrong." Yes, he said, it does help with minority admissions, but not enough. Prior to the affirmative action plan, minority enrollment was stagnant, he said. And most of the minorities came from schools that are mainly of one race or ethnicity.
Justice Alito: "So the 10 percent plan is faulty because it doesn't admit enough minorities from privileged backgrounds? They deserve a leg up, over a student who comes from an absolutely average background?" Justice Kennedy: "What you're saying is that what counts is race, above all. You want underprivileged of a certain race, and privileged of a certain race."
Last to the lectern today was Solicitor General Donald Verrilli, representing the Obama administration and supporting UT's affirmative action program. Grilled by the court's conservatives, he said that race can be a factor in admission, under UT's system; but it is not a mechanical factor. It is only used to promote diversity in a larger sense; for example, the Hispanic student who studied classical Greek, or the African-American student who's a devotee of fencing, or a white student who was class president in a mainly minority school. Chief Justice Roberts then returned to the question of what constitutes a critical mass of minority students. When is enough, enough? Verrilli said the school looks at many factors - information about classroom diversity, retention and graduation rates, among other things. The school, however, cannot measure success by numbers because that would be a quota.
Justice Scalia: "Then call it something else because mass assumes numbers. Call it a cloud, or something like that." Nina Totenberg, NPR News, Washington.