By Marcia Coyle, From The National Law Journal

Taking a second look at the use of race in admissions at the University of Texas at Austin, the U.S. Supreme Court on Wednesday appeared as deeply divided as it was during arguments three years ago.

Although Chief Justice John Roberts Jr. and Justice Antonin Scalia questioned when the general need for affirmative action—a “temporary” measure, said Roberts—would end, the 96-minute arguments in Fisher v. University of Texas largely zoomed in on the specifics of that university’s admissions plan.

And one key justice—Anthony Kennedy—suggested the case may be sent back to the district court in order to get answers to some of the justices’ still unanswered questions about the continuing need to use race to achieve a diverse student body.

The university uses race as one of more than a dozen factors in the admission of students who are not in the top 10 percent of their high school graduating classes. Under Texas law, students in the top 10 percent are guaranteed admission to one of the state’s public colleges. Students in that category make up about 75 percent of the university’s incoming freshman class. The other 25 percent are judged “holistically,” on the basis of their academic scores and a personal-achievement index, which includes race and other factors, such as leadership, honors and awards, socioeconomic status and work experience.

During Wednesday’s arguments, Bert Rein of Wiley Rein, counsel to Abigail Fisher, a white woman who claims she was denied admission to the university in 2008 because of her race, told the high court that the university had failed to meet the constitutional test that the justices imposed in their first review of the admissions plan in 2012.

In so-called Fisher I, a 7-1 majority (Justice Elena Kagan did not participate) sent the case back to the U.S. Court of Appeals for the Fifth Circuit with directions to apply a more rigorous review of the admissions plan. The university had to show that there were no workable, race-neutral alternatives that would achieve the diversity sought by the university. The appellate court, for the second time, upheld the university plan in a 2-1 decision.

Rein argued Wednesday that the university presented no concrete evidence that minority students admitted under the “holistic” plan added to the diversity of the minority student body and offered no way to measure when a “critical mass” of diverse students would be achieved. The university had not shown that it needed to use race to achieve more diversity than what the top 10 percent plan already achieves, he contended.

“If they want to use this forbidden tool, they have to find a way [to measure the impact of using race in the holistic plan],” he said. Rein also said there were “many” race-neutral ways to increase student diversity, such as expanding the top 10 percent plan and reducing the weight placed on standardized test scores.

But the university’s counsel, former Solicitor General Gregory Garre of Latham & Watkins, countered that the appellate court found that without race as a factor in the consideration of students who do not make the top 10 percent cut, those admissions “would approach an all-white enterprise.”

The university has found that, on balance, “there is a difference in the background of the students, African-American, Hispanic students, coming in through the holistic plan versus the top 10 percent plan,” Garre said. The court record shows, he added, that diversity languished at the university in the seven-year period when it had race-blind holistic admissions plus the top 10 percent plan.

Solicitor General Donald Verrilli Jr., supporting the university, told the justices that the university’s holistic plan has “all the hallmarks” of a narrowly tailored plan that the court required and upheld in Grutter v. Bollinger (2003), which involved the University of Michigan School of Law.

Pressed by Roberts on how to judge when diversity has been achieved, Verrilli said to look for such concrete evidence in “well done” classroom studies, surveys of student and faculty attitudes, graduation and retention rates, number of racial incidents and more.

The government’s top lawyer then “refocused” the justices on the general importance of the case. He told them that the military, law enforcement and corporate communities had filed briefs stressing the importance of diverse leaders and leaders who can operate in diverse workplaces and situations.

“These are the considered judgments of people who actually have the responsibility to ensure that the vital functions of the government protecting the country with the military and with law enforcement and the vital functions of commerce ­­are carried out,” Verrilli said. Their judgments, he added, are “worth considerable weight in your analysis.”

Seventy amicus briefs were filed supporting the university, and 16 supporting Fisher.

IMAGE: Proponents of affirmative action stand outside the U.S. Supreme Court on the day of arguments in the case Fisher v. University of Texas at Austin, on December 9, 2015.   Photo: Diego M. Radzinschi/NLJ

For more on this story go to: http://www.nationallawjournal.com/id=1202744419562/Justices-Show-Deep-Divide-Over-Race-in-University-Admissions#ixzz3twfFRB71