WASHINGTON – An affirmative action plan at the University of Texas seemed to be in trouble at the Supreme Court on Wednesday. By the end of an unusually long and tense argument, a majority of the justices appeared unpersuaded that the plan was constitutional.
A ruling against the university could imperil affirmative action at colleges and universities around the nation. In a remark that drew muted gasps in the courtroom, Justice Antonin Scalia said that minority students with inferior academic credentials may be better off at “a less advanced school, a slower-track school where they do well.”
It remains conceivable that the court could avoid ruling on the question for a second time. Justice Anthony M. Kennedy, who almost certainly holds the crucial vote and has never voted to uphold an affirmative action plan, spent almost all of his time exploring whether the university should be allowed to submit more evidence to justify its use of race in accepting students. Kennedy seemed frustrated at the prospect of having to decide the case, which the court largely ducked in a previous encounter in 2013. “We’re just arguing the same case,” he said. “It’s as if nothing had happened.”
The case, Fisher v. University of Texas, No. 14-981, was brought by Abigail Fisher, a white student who says the University of Texas denied her admission in 2008 because of her race. She has since graduated from Louisiana State University.
Several of the court’s conservative justices subjected the lawyers defending the Texas plan to a barrage of skeptical questions. Chief Justice John G. Roberts Jr. questioned the value of diversity in at least some academic settings. “What unique perspective does a minority student bring to a physics class?” he asked. Solicitor General Donald B. Verrilli Jr., who argued in favor of the Texas plan, said, “What the court is going to say in this case obviously is going to apply eventually to every university in the country.”
The last time the court considered the case, in 2013, it avoided giving a direct answer about the constitutionality of the Texas program, and it returned the case to an appeals court. The 2013 decision, decided by a 7-1 vote, was a compromise, Justice Stephen G. Breyer said Wednesday. “That opinion by seven people reflected no one’s views perfectly,” he said.
