Sharp Questioning by Supreme Court Justices in Affirmative Action Case

Court heard arguments on affirmative action in college admissions Wednesday, and justices appear split.

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The U.S. Supreme Court heard arguments Wednesday in a case that could decide the fate of affirmative action in college admissions.

Fisher v. University of Texas at Austin explores the state university's policy of considering race as a factor in its non-academic criteria for admissions.

[VIEW: Slideshow: The U.S. Supreme Court Justices]

Currently, the school grants automatic admission to Texas applicants who are in the top 10 percent of their high school's graduating class. These students make up about three-fourths of the school's enrollment, which is among the most diverse in the country.

For the rest of its enrollment the school considers students who did not make the 10 percent cutoff. UT says these students' admission criteria are based on their grades and a 'personal achievement index', which is unrelated to academics. This rating factors in a student's race, along with socioeconomic status and other "special circumstances".

The case was brought by Abigail Noel Fisher, a white student from Texas who believes she was not admitted to UT because of her race.

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"I dreamt of going to UT since the second grade. My dad went there, my sister went there, and tons of friends of family, and it was a tradition I wanted to continue," Fisher says in a YouTube video on the case. "There were people in my class with lower grades who weren't in all the activities I was in who were being accepted into UT and the only other difference between us was the color of our skin."

At the heart of the case is the controversial topic of affirmative action, which attempts to eliminate barriers to entry, namely by factoring race into admissions decisions. The Supreme Court has ruled on similar areas before. In 2003, a Supreme Court with a slightly different ideological makeup upheld as constitutional the University of Michigan's use of race as a factor in admissions, with the goal of improving "racial diversity." Only two of the justices who agreed with that ruling are still on the court, Stephen Breyer and Ruth Bader Ginsburg. Three of the four justices who disagreed with the decision — Anthony Kennedy, Antonin Scalia, and Clarence Thomas — remain on the Court.

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In Wednesday's arguments, the court's more conservative justices appeared skeptical of the Texas admissions process, while the more liberal ones seemed to be more supportive of it, according to the Court's transcript. Justices Ginsburg and Breyer, joined by Sonia Sotomayor led the questioning of Fisher's attorney, Bert Rein.

Breyer began by asking why the court should overturn its previous ruling on affirmative action, Grutter v. Bollinger, which stated that Michigan Law School had a compelling interest in promoting racial diversity.

"Grutter said it would be good law for at least 25 years, and I know that time flies, but I think only nine of those years have passed," Breyer said. "Why overrule a case into which so much thought and effort went and so many people across the country have depended on?

Sotomayor later expanded on Breyer's question by stating that the goal of UT's policy is, like Michigan Law School's was, to promote diversity and is therefore constitutional.

"[The University of Texas] told the district court. They took a study of students. They analyzed the composition of their classes, and they determined in their educational judgment that greater diversity, just as we said in Grutter, is a goal of their educational program," Sotomayor said to Rein. "So what more proof do you require?"

The court's most conservative justices, including Chief Justice John Roberts, Scalia, and Justice Samuel Alito were more vocal in their questioning of the university's attorney.

"Well I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don't think I've ever seen before," Alito said to Greg Garre, the attorney for UT, regarding the reasoning behind the school's admissions.