Supreme Court torn over Texas affirmative-action program

WASHINGTON -- The Supreme Court appears torn over the use of race in college admissions and may not be ready to make a decision without more information.

During arguments Wednesday, several justices asked about the value of ordering more hearings in a case from Texas that was before them for the second time.

Additional evidence might determine whether the use of race is necessary to increase diversity at the University of Texas.

The justices rehashed many of the same arguments they discussed three years ago in the case of Abigail Fisher. Justice Anthony Kennedy, crucial to the outcome, said there was information "we should know and don't know."

Fisher has been out of college since 2012, but the justices' renewed interest in her case appeared to be a sign the court's conservative majority is poised to cut back, or even end, affirmative action in higher education.

Their skepticism about it was on display during more than 90 minutes in a packed courtroom.

"What unique perspective does a minority student bring to a physics class?" Chief Justice John Roberts asked, challenging a part of Texas' argument that says their program is needed to increase diversity at the classroom level.

But it was not clear from the arguments whether Kennedy would go as far as the other conservatives appeared willing to deal a blow to race as a factor in college admissions.

Potentially complicating the outcome, Justice Elena Kagan is sitting out the case because she worked on it at an earlier stage at the Justice Department, before joining the court. Her absence creates the possibility of a 4-4 split. That would resolve the case in Texas' favor, but say nothing about the issue nationally. The other three liberal justices appeared solidly in favor of the Texas program.

The arguments focused on whether the university flagship campus in Austin has compelling reasons to consider race among other factors when it evaluates applicants for about one-quarter of its freshman class. Most students are admitted to the university through a plan that guarantees slots to Texans who graduate in the top 10 percent of their high school classes.

Fisher said the "top 10" program works well to bring in Hispanic and African-American students, without considering race. Bert Rein, representing Fisher, said the university can take other steps to diversify its student body without explicit reference to race, including reducing its reliance on standardized test scores.

Texas says the "top 10" program alone is not enough, and the school needs the freedom to fill out incoming classes as it sees fit. Gregory Garre said on behalf of the university that minority enrollment plummeted at top public universities in California and Michigan after they ended the consideration of race.

"Now is not the time, and this is not the case to roll back student-body diversity in America," Garre said.

Twelve years ago, the justices reaffirmed the consideration of race in the quest for diversity on campus. A more conservative court first heard Fisher's case in 2012; the case ended inconclusively with a tepid decision that ordered a lower court review.

The federal appeals court in New Orleans twice has upheld the Texas admissions program and rejected Fisher's appeal.

Fisher's case was conceived by Edward Blum, an opponent of racial preferences. Blum also is behind lawsuits against Harvard University and the University of North Carolina that aim to eliminate any consideration of race in college admissions.

Texas is unique in marrying the top 10 plan to a separate admissions review in which race is one of many factors considered. The university's freshman class is 22 percent Hispanic and 4.5 percent African-American. White students make up less than one-half of the school's freshmen.

Eight states prohibit the use of race in public college admissions: Arizona, California, Florida, Michigan, Nebraska, New Hampshire, Oklahoma and Washington.

The Obama administration, dozens of colleges and many of the nation's largest businesses are supporting Texas in defending its program.