At the end of a lengthy oral argument over admissions policies at the University of Texas, it seemed highly unlikely that a majority of the justices would announce a ringing endorsement of racial preferences.
But it also was unclear whether there were five votes willing to bar universities from considering race in their admissions processes. Such a ruling would renounce the court’s most recent affirmative action decision, in 2003, that universities could use race in a limited way to achieve a “critical mass” of diversity that benefits all students.
The decision will probably come down to Justice Anthony M. Kennedy. The longtime justice has agreed in theory that campus diversity is the kind of compelling government interest that can sometimes license an otherwise forbidden consideration of race.
But he dissented in that 2003 case, Grutter v. Bollinger, and has never voted to uphold an affirmative action plan that has come before the court for review. His questions Wednesday indicated discomfort with UT’s use of race, but they were far short of the condemnations that came from the court’s other conservatives.
The University of Texas at Austin admits about 75 percent of its freshmen based on their graduation rankings from Texas high schools. For the remaining students, it uses a “holistic” evaluation that includes race as one of many factors.
A white applicant, Abigail Fisher, says those attempts to boost the number of African American and Hispanic students cost her a spot in the freshman class of 2008.
The court since 1978 has recognized that promoting diversity on the nation’s campuses allows universities to give some consideration to an applicant’s race, which normally would be unconstitutional.
On Wednesday, the court’s liberals recalled that, in the Grutter decision, the court said it expected that racial considerations would not be needed in 25 years.
“I know that time flies, but only nine of those years have passed,” Justice Stephen G. Breyer said.
What has changed, though, is the court’s composition. The 5 to 4 Grutter decision was written by Justice Sandra Day O’Connor, who has been replaced on the court by Justice Samuel A. Alito Jr. Alito has proved to be a fierce opponent of race-specific government policies.
The change was underscored when O’Connor entered the courtroom Wednesday a little after the argument began and took a seat in the front row, where retired justices normally sit to watch proceedings.