By Terry Baynes
WASHINGTON (Reuters) - Supreme Court justices on Wednesday vigorously challenged a University of Texas admissions program that favors some African-American and Hispanic applicants in a case that could determine how universities use affirmative action at campuses nationwide.
The legal battle is the most closely watched case of the court's current term, striking at the heart of two defining American characteristics - race and opportunity. The country's racial makeup has also changed significantly over time, with racial and ethnic minorities making up more than half of the children born in the United States for the first time this year, according to government data.
The University of Texas and its supporters contend that universities must have the flexibility to consider race to ensure diversity. Opponents say it is time to eliminate racial preferences, which they say are unconstitutional.
In Wednesday's arguments, members of the court's conservative wing pressed a lawyer for the university on the goals of affirmative action and whether universities would ever be able to stop using race in their admissions decisions.
Some of the liberal justices suggested the court should not overturn its prior rulings.
Justice Sonia Sotomayor summed up the central issue facing the court: "When do we stop deferring to the university's judgment that (considering) race is still necessary?" she asked. "That's the bottom line of this case."
The case involves Abigail Fisher, a white student who was denied admission by the University of Texas at Austin in 2008. Fisher sued the same year, claiming that racial minorities with worse credentials were accepted ahead of her. She argued that the school's use of race in admissions violated the U.S. Constitution's guarantee of equal protection. The university countered that it needed the flexibility to consider race as one of many factors to build a "critical mass" of underrepresented minorities.
'WHERE IS THE END POINT?'
Chief Justice John Roberts pressed university lawyer Gregory Garre on how judges would know when UT had achieved its desired level of diversity: "When will I know that you've reached a critical mass?"
Garre responded that critical mass is not a certain number but rather a point where "African Americans and Hispanics do not feel like spokespersons for their race." At that moment the university would stop using race in admissions, he said.
But Fisher's lawyer, Bert Rein, reiterated the Chief Justice's concern: "Where is the end point? If you have nothing to gauge the success of the program ... there is no judicial supervision."
Questions from liberal justices Ruth Bader Ginsburg, Sonia Sotomayor and Stephen Breyer implied support for the program. Breyer questioned Rein why the court should backtrack on past decisions that have allowed affirmative action.
Breyer asked Rein why the court should overturn a precedent into which "so much thought and effort went" and which "so many people across the country have depended on."
The overall tone of the hearing suggested that while the court might not uphold the Texas plan, there would not be a majority of justices to broadly strike down the use of race in admissions.
The justices who appeared most resistant to the Texas plan were Roberts and Justices Samuel Alito and Antonin Scalia. Justice Clarence Thomas, who asked no questions, would likely side with those conservatives based on his past writings on affirmative action.
Justice Anthony Kennedy, whose position may be decisive, signaled some concerns with the Texas plan but did not indicate by his questions that he was ready to curtail such nationwide practices.
NINE YEARS OF RELIANCE
The case arises nine years after the Supreme Court narrowly upheld affirmative action in a dispute over the University of Michigan Law School's admissions practices. By a 5-4 vote the court in 2003 said universities could consider an applicant's race alongside a host of other factors to improve diversity.
Public universities in 43 states that allow affirmative action and thousands of private colleges and universities have relied on that decision, Grutter v. Bollinger, to include race in their admissions decisions.
The Texas case has drawn more than 90 friend-of-the-court briefs from scores of academic institutions, think tanks and public interest groups, most in support of Texas.
The court's Public Information Office said people began lining up for spectator seats from 6 p.m. on Tuesday and waited overnight. More than 80 reporters had sought seats.
The court has changed since 2003. Justice Sandra Day O'Connor, who wrote the University of Michigan decision, retired in 2006 and has been replaced by the more conservative Alito. O'Connor watched the arguments in the courtroom on Wednesday.
SECURING RACIAL DIVERSITY ON CAMPUS
The University of Texas fills most of its entering class of freshmen using a policy that grants automatic admission to in-state students in the top 10 percent of their high school class. For the remaining slots it considers an applicant's race as one of many factors to improve diversity.
Fisher's claim rests on the legal argument that, under the Equal Protection Clause, universities can use race only if there is no other way to improve diversity. Fisher argues that the top 10 percent law is sufficient for boosting racial diversity.
The 5th U.S. Circuit Court of Appeals rejected her challenge, based on the Supreme Court's 2003 ruling.
Some of the justices suggested that because Texas considers an applicant's race for only part of its student body, the Texas program would easily pass the standard set forth in the 2003 case. Ginsburg described the University of Texas' use of race as "more modest" than the admissions policy in the Michigan case.
"If it's so few, then what's the problem?" asked Kennedy, referring to the number of slots the school fills using the race-conscious admissions policy.
But the fact that the gains from the race-based part of the process are so small, compared with the top 10 percent plan, could lead the court to conclude that the university does not need to rely on race at all.
Alito asked Garre how the university's use of race could "possibly do more than a tiny, tiny amount to increase classroom diversity."
The hundreds of demonstrators who gathered outside the courthouse on Wednesday overwhelmingly favored keeping the university policy intact. They carried signs saying: "Diversity works," "Out of many, one America" and "Expand Opportunity."
Cortney Sanders, a third-year student at the University of Texas and an African American, said: "The University of Texas used to be a school of exclusion, now it is promoting a policy of inclusion ... We are many people, but we are one America."
Only eight justices heard the oral arguments. Justice Elena Kagan, an Obama appointee who would be expected to endorse affirmative action, did not participate. Although she did not specify why she recused herself, she could well have worked on the case in her previous job as U.S. solicitor general.
A 4-4 tie would affirm the lower court decision in favor of Texas. If a majority rejects the Texas program, the overriding question is how broadly it will rule. It could reject only the Texas program or rule that universities can no longer consider race in choosing their students.
The court is expected to issue a decision before the term ends in June.
The case is Fisher v. Texas, U.S. Supreme Court, No. 11-345.
(Additional reporting by Joan Biskupic and Ian Simpson in Washington; Editing by Howard Goller, David Storey and Prudence Crowther)