Supreme Court Justices’ Comments Don’t Bode Well for Affirmative Action

Adam Liptak, New York Times, December 9, 2015

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.”

“I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible,” he added.

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.

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{snip} Justice Scalia’s questions were particularly hostile to racial preferences, which he said could leave minority students worse off. “Most of the black scientists in this country don’t come from schools like the University of Texas,” he said. “They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.”

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.

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Justice Alito added that the top-10 program helped underprivileged students in a way the race-conscious admissions did not. “The reason for adopting affirmative action in the first place,” he said, “was because there are people who have been severely disadvantaged through discrimination and lack of wealth, and they should be given a benefit in admission.”

But Justice Ruth Bader Ginsburg said the top-10 program was itself problematic. “It seems to me that it is so obviously driven by one thing only, and that thing is race,” she said. “It’s totally dependent upon having racially segregated neighborhoods, racially segregated schools, and it operates as a disincentive for a minority student to step out of that segregated community and attempt to get an integrated education.”

Justice Elena Kagan was recused from the case because she had worked on it as solicitor general of the United States. The three remaining liberals asked questions in nervous and exasperated tones.

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The lawyers defending the Texas plan said the court’s ruling, expected by June, would be timely and far-reaching.

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

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