As the U.S. Supreme Court heard oral arguments on Wednesday in a lawsuit challenging race-conscious admissions at the University of Texas at Austin, it became evident that the court's past rulings on such policies have failed to provide colleges—or even the justices themselves—with clear guidance.
Questions such as how much racial and ethnic diversity colleges need, or how they should classify and evaluate students in trying to bring it about, seemed every bit as unsettled as they had been when the court last weighed in on such policies, in two 2003 decisions involving the University of Michigan at Ann Arbor.
At one point in the back and forth between the justices and lawyers, Justice Antonin Scalia, one of the court's harshest critics of affirmative action, found himself in agreement with the U.S. solicitor general, Donald B. Verrilli Jr., who was arguing on behalf of the Obama administration in support of the University of Texas. Both said that the high court might have led colleges astray in holding in 2003 that they could consider applicants' ethnicity or race to assemble a "critical mass" of minority students.
The term "critical mass," they said, leads colleges to focus on enrolling enough minority students to meet some numerical threshold, an approach that puts them in danger of violating the court's ban on their use of quotas.
"Call it a cloud or something like that," Justice Scalia said, drawing laughter from a courtroom packed with journalists and spectators.
Among the key questions left unanswered on Wednesday was how Justice Anthony M. Kennedy—widely regarded as the court's key swing vote in the case—is likely to rule. He remained on the sidelines through much of the proceedings, asking questions that mainly seemed intended to clarify, rather than challenge, the arguments offered by the opposing sides.
One of the few times he tipped his hand was in an exchange with the university's lawyer, Gregory G. Garre, in which Justice Kennedy argued that Texas' willingness to give extra consideration to black and Hispanic applicants from economically privileged backgrounds suggests that, in its admission process, "what counts is race above all."
Justice Elena Kagan has recused herself from the case, having been involved, in her previous capacity as U.S. solicitor general, in preparing the Obama administration's brief in support of the Texas flagship when the case was before the U.S. Court of Appeals for the Fifth Circuit.
Among the eight members of the court who heard the case on Wednesday, only three—Justices Stephen G. Breyer, Ruth Bader Ginsburg, and Sonia M. Sotomayor—are viewed as supportive enough of affirmative action to want to uphold Texas' policies.
Four others—Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia, and Clarence Thomas—are regarded as hostile enough to race-conscious government policies to declare all considerations of race in college admissions to be unconstitutional.
Based on views expressed in his past rulings, Justice Kennedy could join the other conservatives on the bench in overturning the Supreme Court's 2003 Grutter v. Bollinger decision, in which a 5-to-4 majority held that race-conscious admission policies could serve a compelling government interest.
It appears more likely, however, that he will reject Texas' policies as falling outside the guidelines set forth by the Grutter decision, leaving the policies at other colleges intact.
There's also a chance he could uphold Texas' plan, but that possibility is seen as remote.
The court is expected to decide the case, Fisher v. University of Texas at Austin (No. 11-345), next year.
The plaintiff in the case is Abigail Noel Fisher, a white applicant for undergraduate admission who was rejected by the University of Texas at Austin in 2008. She earned a degree in business from Louisiana State University at Baton Rouge last spring.
The lawyer who represented her in Wednesday's proceedings, Bert W. Rein, focused on arguing that Texas' policies violate the guidelines set forth by the court in its Grutter decision, and devoted little energy to trying to persuade the court to overturn its own Grutter precedent.
Mr. Rein told the court that his side recognizes that the government has an interest in diversity on college campuses, but that colleges have taken the Grutter decision as "a green light" to engage in "an abominable kind of sorting out" by race, which "needs to be corralled."
Meeting with reporters outside the court after Wednesday's arguments, Mr. Rein reiterated his view that Ms. Fisher, a native of Sugar Land, Tex., had been injured by being part of a pool of applicants subjected to an admission process that considered her race.
"It is critical in Texas to be a UT graduate," he said. "She can't have that back."
Much of the discussion inside the court focused on the question of whether Texas needed to consider applicants' race or ethnicity at all, or had achieved sufficient levels of diversity as a result of a state law requiring it to admit young state residents in the top tenth of their high-school class.
Texas has justified the race-conscious admission policy it adopted in 2004, in response to the Grutter decision, as necessary to achieve a "critical mass" of minority students. But Mr. Rein argued on Wednesday that the university had done so without establishing "even a working target" of what minority enrollments needed to be.
There was little consensus in the court as to how a critical mass should be defined, and whether that definition should be tied to demographic considerations.
Justice Sotomayor chided Mr. Rein that he "can't seriously suggest that demographics aren't a factor to be looked at," in combination with black and Hispanic students' self-reported feelings of racial isolation, in determining whether race-conscious admissions policies are needed.
On the other side of the court's liberal-conservative split, Justice Scalia said he wished Mr. Rein would argue "that the demographic makeup of the state has nothing to do with whether somebody feels isolated, that if you're in a state that is only 1 percent black that doesn't mean that you're not isolated so long as there's 1 percent in the class."
Mr. Rein noted that the Grutter decision's definition of a critical mass is having a sufficient number of minority students so that they do not feel isolated and feel comfortable speaking out. He argued that Texas already had reached a threshold, with an undergraduate enrollment that was 21 percent black and Hispanic, before its 2004 decision to consider race in weighing applicants who were not automatically admitted under the state's class-rank policy.
Justice Sotomayor asked Mr. Rein how Texas' race-conscious admission policy was not narrowly tailored to promote diversity. He said, "If you have no range of evaluation, if you have no understanding of what critical mass means, you can't tailor to it."
Later in the proceedings, Justice Scalia pressed Texas' lawyer, Mr. Garre, to describe how the institution decides whether it has achieved a critical mass of minority students, and whether, given its stated interest in having diversity at the classroom level, it has people inspect classrooms for enough members of any given race.
"The university has never asserted a compelling interest in any specific diversity in every single classroom," Mr. Garre replied. "It has simply looked to classroom diversity as one dimension of student-body diversity." Under questioning from Justice Roberts, Mr. Garre acknowledged that the university lets students designate their own racial classification, relying on its honor code to prompt them to give truthful answers.
"Would it violate the honor code for someone who is one-eighth Hispanic and says, I identify as Hispanic, to check the Hispanic box?" Justice Roberts asked.
"I don't think it would, Your Honor," Mr. Garre replied.
Questions of Standing
Many questions posed by the court's liberal wing focused on whether Ms. Fisher even had legal standing to sue the university, given its contention that she would have been rejected even if her race had not been considered.
Noting that Ms. Fisher's lawsuit is for monetary damages—namely, the $100 fee she paid in applying—Mr. Garre said, "she would have paid the admissions fee no matter what admissions policy the university had."
Asked by Justice Ginsburg what other potential injury his client had suffered, Ms. Fisher's lawyer said she had suffered "a Constitutional injury" in being subjected to an admission system that denied her equal protection under the law.
Mr. Rein added that her lawyers could sue for the difference between her in-state tuition at Texas and her out-of-state tuition at Louisiana State, or her potential long-term loss of income as a result of not earning a degree from the flagship Texas campus.
Justice Breyer, in an exchange with Mr. Rein, suggested it would be a mistake for the court to get into the business of second-guessing colleges' decisions regarding their admission policies.
"There are several thousand admissions officers in the United States, several thousand universities," Justice Breyer said, "and what is it we're going to say here that wasn't already said in Grutter that isn't going to take hundreds or thousands of these people and have federal judges dictating the policy of admission of all these universities?"