Justice Antonin Scalia suggests affirmative action hurts black and Hispanic college students

The Supreme Court appeared closely divided over affirmative action in college admissions on Wednesday as conservative justices expressed doubt about a policy at the University of Texas at Austin that used race as a factor in choosing applicants.

It was unclear how the court will rule on the contentious issue after a testy 90-minute oral argument. Conservative Justice Anthony Kennedy, who often casts the deciding vote in close cases, raised the possibility of the case being sent back to a lower court for more evidence to be admitted.

Some of the court's conservatives voiced skepticism about the success of affirmative action and its long-term value.

The court is weighing for the second time a challenge to the system used by the University of Texas at Austin, the state's flagship public university, brought by a white applicant, Abigail Fisher, who was denied entry to the entering class of 2008.

The court, whose ruling is expected by the end of June, appeared split ideologically, with liberals voicing support for affirmative action programs and conservatives questioning why the Texas program was needed to promote campus diversity.

Conservative Justice Antonin Scalia questioned whether some blacks and Hispanics are actually hurt by the program because they are not strong enough candidates to be admitted purely on academic criteria. Scalia suggested they might be better off attending less academically rigorous schools.

Chief Justice John Roberts, another conservative, expressed doubt about whether the benefits of diversity can ever be properly measured.

"What unique perspectives does a minority bring to physics class?" Roberts asked.

Affirmative action refers to policies under which minorities historically subject to discrimination are given certain preferences in order to enhance the racial diversity of a university's student population.

The conservative-leaning Supreme Court has previously ruled against racial remedies in voting, employment and other areas of the law.

Some of the conservatives, including Kennedy and Roberts, appeared frustrated at what they considered the lack of evidence supporting the university’s need for the program.

Although more evidence could be introduced if the case were to be returned to a lower court, Kennedy later questioned whether such a move would be needed and suggested the justices themselves could re-examine the information provided by the university.

Kennedy suggested by his questions that Fisher’s attorney, Burt Rein, might be pushing the court too far in curbing affirmative action. At one point, he wondered whether any program could be ruled constitutional under the challenger's standard.

At the University of Texas at Austin, most freshman are admitted under a program guaranteeing places to the top 10 percent of high school graduating classes. A supplemental program, which is targeted in the lawsuit, looks beyond grades to a range of characteristics including race.

Conservative Justice Samuel Alito said it was "terrible stereotyping" to suggest that the minorities admitted under the university’s "top 10" program were inferior to those admitted under the supplemental program being challenged.

Among the liberal justices, the most vocal supporter of the Texas program was Sonia Sotomayor, the court's only Hispanic, who clashed repeatedly with Rein and some fellow justices.

At one point, she listed some of the evidence cited by the university and asked Rein: "What more do you need?"

Her liberal colleagues Stephen Breyer and Ruth Bader Ginsburg also appeared to back the university.

Wednesday’s arguments were heard by eight of the nine justices. Liberal Elena Kagan, who was U.S. solicitor general in the Obama administration when it backed the University of Texas in lower court litigation, did not participate.

EQUAL TREATMENT

Fisher, now 25, argued that a University of Texas affirmative action policy violated the U.S. Constitution's guarantee of equal treatment under the law by favoring black and Hispanic applicants.

When the justices first heard Fisher's case in 2012, the give-and-take during oral arguments was contentious and the justices appeared ready to strike down the admissions policy.

But after eight months of mulling it over they ended up with a compromise ruling in 2013 that kicked the case back to a lower court for a tougher review of whether the university could justify including race among its admissions criteria. The appeals court again upheld the program.

Fisher said the university denied her admission in favor of lesser-qualified minorities. She graduated from Louisiana State University in 2012.

University officials contend the top 10 percent method alone does not generate a sufficient mix of students to provide campus diversity.

The conservative legal activists behind the Texas challenge have separately launched more sweeping lawsuits against Harvard University and the University of North Carolina. Those cases, brought on behalf of Asian Americans who claim they are particularly hurt by affirmative action programs, target the 1978 Supreme Court decision that first upheld the consideration of race in campus admissions.

The challengers argue that the Bakke ruling was wrong and that the Constitution’s equality guarantee means race can never dictate who gets a place on campus.

(Reporting by Lawrence Hurley; Additional reporting by Joan Biskupic; Editing by Will Dunham)