US justices seem skeptical of race-, ethnicity-linked admissions

The US Supreme Court appeared sharply divided on Wednesday on the thorny issue of whether race and ethnicity can be used in deciding college admissions -- a decades-old practice known in the United States as "affirmative action."

With the high court's more conservative justices strongly objecting to the controversial practice, there appeared a real chance that it might be ended. That could have an unsettling impact on college campuses already agitated over racial and other issues.

Justice Antonin Scalia, voicing his own skepticism, mentioned the opinion of some affirmative action critics -- while not citing it as his own -- that some black students might do better at "a slower track school" than the University of Texas.

Used by some schools to bolster the number of students from minority racial and ethnic groups, affirmative action long has been used to help redress centuries of discrimination, particularly against African-Americans.

Blacks and Hispanics often are statistically underrepresented on US campuses, yet some of those who are accepted complain of being isolated or even victimized by discriminatory behavior.

Opponents of affirmative action, meantime, complain that qualified white students are disadvantaged by policies seeking to increase the numbers of minority students. They call such policies outdated, unfair and ineffective.

The high court was examining the case of Abigail Fisher, a student who says she was denied admission to the University of Texas because she is white.

"Whether you are a male or a female, or white or black, it shouldn't matter," she has said. "It should come down to your grades and your activities."

Fisher graduated from a different institution in 2012. But her case continued its way through the courts. It reached the Supreme Court in 2012, but the justices sent it back to a Texas appeals court for review.

This time, the stakes are higher -- potentially involving the very concept of affirmative action.

- Threading the needle -

Since first taking up the issue, the Supreme Court has become more conservative and less friendly to affirmative action policies.

In 1978, following years of civil strife across the country, the court affirmed the limited use of race as a factor in admissions. In 2003 it reaffirmed that finding, but stipulated that affirmative action is legal only if racial quotas are not used.

The University of Texas, carefully threading that needle, devised a policy guaranteeing admission to high school students graduating in the top 10 percent of their class. The university also considers athletics and other extracurricular activities -- as well as ethnicity.

But for opponents of affirmative action such as Fisher, college admissions decisions "should be based on merit and not on any other external factor."

- Diversity, not favorites -

Civil rights advocates, however, say affirmative action is needed today as much as ever.

"Affirmative action is designed to benefit all students," said Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund, a civil rights advocacy group.

"It's designed to ensure that the pipeline for leadership and opportunity remains open for minority students," she said, but it is also designed to ensure that the state's future leaders are exposed to "a variety of voices from across the range of experiences."

At the University of Texas, the number of blacks enrolled nearly doubled from 2004 to 2007 thanks partly to affirmative action. They still account for just six percent of the student body in a state that is 12 percent black.

Justice Sonia Sotomayor, who is of Puerto Rican descent and is a fervent advocate of affirmative action, strongly supported that approach.

"What's the problem with this plan?" she asked of Texas's policies.

But Bert Rein, Fisher's lawyer, said the school's approach was "just used to create a racial plus."

On Wednesday, only eight of the nine justices were present. Justice Elena Kagan recused herself, having dealt with the Fisher case as US solicitor general.

The court's only black justice, Clarence Thomas, remained silent throughout the hearing, as is his custom.

In the event of a split 4-4 vote in the case, the appeals court ruling -- that universities may use race as one factor in a "holistic" admissions policy if needed to achieve diversity -- would remain valid.

Several American states, including Michigan and California, now bar the use of affirmative action for student enrollment.

Another part of the policy's controversial element stems from the fact that US ethnic groups' distribution are very unevern across the United States.

While non-Hispanic whites make up 63 percent of Americans nationwide, whites already are not a majority in some US states such as California. Some white students in California already have argued they should be given affirmative action in their state, where Asians are over-represented in state universities.

US census experts believe the country as a whole for the first time will no longer have a non-Hispanic white majority by 2043 or sooner. Hispanics now make up 17 percent of the US population, blacks 12 percent, Asians five percent and multiracial Americans two percent.