By Terry Baynes
WASHINGTON (Reuters) - U.S. Supreme Court justices vigorously challenged a University of Texas admissions program that favors some African-American and Hispanic applicants on Wednesday in a case that could determine how universities use affirmative action at campuses nationwide.
Chief Justice John Roberts and Justice Samuel Alito pressed the university's lawyer on the details of the admissions scheme and when race breaks a tie between similar applicants.
Roberts challenged the university's lawyer on how judges would know when the university had achieved its desired level of diversity.
Questions from liberal justices, such as Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor, suggested support for the program. Fellow liberal, Justice Stephen Breyer, questioned the lawyer for those challenging the program why the court should backtrack on past decisions that have allowed affirmative action.
Breyer asked the lawyer why the court should overturn a precedent into which "so much thought and attention went" and which "so many people across the country have relied on."
The overall tone of the hearing suggested that while the court might not uphold the Texas plan, there would not be a majority of justices to broadly strike down the use of race in admissions.
The justices who appeared most resistant to the Texas plan were Roberts, Alito and Justice Antonin Scalia. Justice Clarence Thomas, who asked no questions, would likely side with those conservatives, based on his past writings on affirmative action.
Those justices appearing ready to uphold the Texas program were Ginsburg, Breyer and Sotomayor. Justice Anthony Kennedy, whose position may be decisive, signaled some concerns with the Texas plan but did not suggest by his questions that he was ready to curtail such nationwide practices.
The case arises nine years after the Supreme Court narrowly upheld affirmative action in a dispute over the University of Michigan Law School's admissions practices. By a 5-4 vote, the court in 2003 said universities could consider an applicant's race alongside a host of other factors to improve diversity.
Public universities in 43 states that allow affirmative action and thousands of private colleges and universities have relied on that decision, Grutter v. Bollinger, to include race as a factor in their admissions decisions.
AIM IS DIVERSITY
The case has drawn more than 90 friend-of-the-court briefs from scores of academic institutions, think tanks and public interest groups, most in support of Texas. The case is the most closely watched dispute of the current term.
The court's Public Information Office said that people began lining up for spectator seats from 6 p.m. on Tuesday evening and waited overnight. More than 80 reporters had sought seats.
The University of Texas and its supporters contend that universities must have the flexibility to consider race to ensure diversity. Opponents say it is time to eliminate racial preferences, which they say are unconstitutional.
The court has changed since 2003. Justice Sandra Day O'Connor, who wrote the University of Michigan decision, retired in 2006 and has been replaced by the more conservative Alito. O'Connor watched the arguments in the courtroom on Wednesday.
In the Texas case Abigail Fisher, a white student who was denied admission by the University of Texas at Austin, sued in 2008, claiming that racial minorities with worse credentials were accepted ahead of her. She argues that the school's use of race in admissions violates the U.S. Constitution's guarantee of equal protection.
RACIAL DIVERSITY AN ISSUE
The University of Texas fills most of its entering class of freshmen using a policy that grants automatic admission to in-state students in the top 10 percent of their high school class. For the remaining slots, it considers an applicant's race as one of many factors to improve diversity.
Fisher's claim rests on the legal argument that, under the Equal Protection Clause, universities can use race only if there is no other way to improve diversity. Fisher argues that the top 10 percent law is sufficient for boosting racial diversity.
The 5th U.S. Circuit Court of Appeals rejected her challenge, based on the Supreme Court's 2003 ruling.
The hundreds of demonstrators who gathered outside the courthouse in Washington on Wednesday overwhelmingly favored keeping the university policy intact. They carried signs saying: "Diversity works," "Out of many, one America" and "Expand Opportunity."
Cortney Sanders, a third-year student at the University of Texas and an African American, said: "The University of Texas used to be a school of exclusion, now it is promoting a policy of inclusion ... We are many people, but we are one America."
Only eight justices heard the oral arguments. Justice Elena Kagan, an Obama appointee who would be expected to endorse affirmative action, did not participate, apparently because she worked on the case in her previous job as U.S. solicitor general.
A 4-4 tie would affirm the lower court decision in favor of Texas. If a majority, on the other hand, rejects the Texas program, the overriding question is how broadly it will rule. It could reject only the Texas program or rule that universities can no longer consider race in choosing their students.
The court is expected to issue a decision before the term ends in June.
The case is Fisher v. Texas, U.S. Supreme Court, No. 11-345.
(Additional reporting by Joan Biskupic and Ian Simpson in Washington; Editing by Howard Goller and David Storey)
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