“The university and any government entity shouldn’t be able to use any racial preferences up until the point that they can prove that the benefits clearly outweigh the costs”, Thompson told CBN News outside the Court. The university admits 75 percent of students through a plan that guarantees slots to Texans who graduate in the top 10 percent of their high school classes, regardless of race.
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“They come from lesser schools where they do not feel that they’re – that they’re being pushed ahead in – in classes that are too – too fast for them”, Scalia said.
The case has been closely followed with a number of business and education interests supporting affirmative action.
“The damages we are seeking are broader than that”, Rein said.
The conservative-leaning Supreme Court has previously ruled against racial remedies in voting, employment and other areas of the law.
Texas has a unique hybrid admissions policy.
“It’s kind of the assumption that if the-if a student-if a black student or a Hispanic student is admitted as part of the top 10-percent plan, it has to be because that student didn’t have to compete against very many whites and- and Asians”, he said.
Justice Sonia Sotomayor pointed out that the percentage of black students admitted by holistic review about doubled in the four years after the university added race as a factor. The university’s current freshman class is 22 percent Hispanic and less than 5 percent black.
Carrie Severino, chief counsel for the conservative Judicial Crisis Network and a former clerk to Justice Clarence Thomas, defended Scalia, saying he wasn’t implying black students are inferior. Phrases like “less-advanced, slower track school”, and “lesser schools” belie the Justice’s opinion. “Maybe it ought to have fewer”, Scalia continued. “People in the universities are anxious that we will kill affirmative action through a death by a thousand cuts”, said Stephen Breyer, who argued it was necessary to have a critical mass of minority students on campus.
“Most of the black scientists in this country don’t come from schools like the University of Texas”, he said, according to transcripts from the hearing. He said the university was engaging in “a bad stereotyping”.
When the court in 2003 decided race could be used in limited circumstances, “it was important…to say, look, this can’t go on forever – 25 years”, he said to the university’s attorney, Gregory G. Garre. He said that “there are those” who claim that African Americans do not benefit from getting admitted in top universities like the University of Texas because they do not perform well in such institutions.
Scalia and other justices asked lawyers for the university several questions Wednesday in a session that lasted 95 minutes. Fisher was not accepted to the school in 2008. Fisher has since graduated from Louisiana State University and now works as a financial analyst in Austin.
Although more evidence could be introduced if the case returns to a lower court, Kennedy later suggested the justices themselves could re-examine data provided by the university.
Garre said the court had already rejected that argument in the past.
Colleges and universities, Kennedy wrote, must demonstrate that “available, workable race-neutral alternatives do not suffice” before using race in admissions decisions.
The appeals court then upheld the Texas program a second time. The case is back at the Supreme Court because the original plaintiff and her lawyers maintain that lower courts did not adequately follow the Supreme Court’s directions in considering the case after the 2013 ruling.
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In the Supreme Court’s previous decision, it left intact the finding that race can be a factor when absolutely necessary to obtain diversity as the end goal.
