US Supreme Court divided on affirmative action

The US Supreme Court was split on Wednesday on a challenge to an affirmative action plan at the University of Texas, a case with broad implications for racial diversity in US higher education.

The court, due to hand down its ruling next year, devoted more time than scheduled to the case of Abigail Fisher, a white student who says she was denied admission to the University of Texas at Austin because of the colour of her skin.

After Elena Kagan's recusal from the case, eight rather than the usual nine justices will decide whether the 22-year-old woman's constitutional rights were violated and whether a policy that considers race as a factor in university admissions decisions is discriminatory.

The university's lawyer, Gregory Garre, supported by Solicitor General Donald Verrilli, came under often hostile questioning from the court's four conservative justices while three liberal justices defended the goal of racial diversity in higher education, as approved in a 2003 Supreme Court decision.

It is the first time the high-level panel is revisiting the issue after its Grutter v Bollinger ruling, which determined that racial quotas do not violate the US Constitution.


Should it decide to reverse course, the court's decision would have an impact on all US universities, both private and public.

The makeup of the high court has changed since the earlier decision, "creating a conservative majority willing to strike down precedents upholding diversity-focused admissions programs," said Elizabeth Wydra, chief counsel at the Constitutional Accountability Centre.

The deciding vote
In the end, Justice Anthony Kennedy – a mostly conservative member of the court who has leaned both to the left and right of issues – could be the deciding vote in the case. While in favour of diversity during last decade's ruling, he asked several sceptical questions on Wednesday.

At the prodding of Justice Sonia Sotomayor, the panel wanted to know to what degree racial diversity should be maintained.

"Could you tell me what the critical mass" should be, asked Sotomayor, a Hispanic who is a fervent advocate of affirmative action.

"The point is to create an environment where everyone develops a certain citizenship in a diverse society," said Verrilli, who represents the views of President Barack Obama's administration.

"Our strength comes from different races, different cultures."

Fisher's attorney Bert Rein, arguing against the University of Texas admissions policy, called it an unacceptable "invasion" of the US Constitution's Equal Protection Clause, which requires each state to grant equal protection of the laws to any person within its jurisdiction.

"This is a constitutional injury," he said in his closing arguments.

After the oral arguments, Fisher issued a statement expressing hope that the court would strike down the policy.

"My parents always taught me that it is wrong to discriminate. I hope the Supreme Court will decide that all future University of Texas applicants will compete without their race or ethnicity used in the school's admissions process," she said.

Kagan, the newest justice, recused herself because she was involved in the case as solicitor general.

Should a tie vote occur among the eight justices deciding the case, a lower appellate court's ruling upholding the University of Texas's admissions policies would be sustained. That ruling would not serve as a national precedent in the event of future court challenges.

The National Association for the Advancement of Coloured People (NAACP) urged the court not to move backwards and said Fisher's arguments could do "grave damage."

"The American dream should be within reach of every child," the group said in a statement. "Despite all the progress our nation has made, we still have a long way to go." – Sapa-AP

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