Conservative justices give sympathetic hearing in Fisher v University of Texas but were warned that end to affirmative action would see diversity ‘plummet’

A US supreme court justice has suggested that black students may benefit from the end of affirmative action admissions policies in US universities because many are “pushed ahead too fast” and should go to “lesser schools” instead.

The comments by Antonin Scalia came as conservatives on the court gave a sympathetic hearing to a white student who claims she was deprived of a place at the University of Texas due to her race.

Abigail Fisher graduated two years ago from Louisiana State University instead, but the court was warned that the number of minority students on US college campuses could “plummet” if her appeal against UT is successful – something Scalia suggested could be no bad thing.

“There are those who contend that it does not benefit African Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school, where they do well,” he said.

“One of the [legal] briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.”

Justice Scalia made clear he shared this view and also suggested these “lesser schools” suffered by having minority students admitted to unsuitable elite institutions.

“I’m just not impressed by the fact that the University of Texas may have fewer [black students if the admissions policy changes]. Maybe it ought to have fewer. And maybe, when you take more, the number of blacks, really competent blacks, admitted to lesser schools, turns out to be less,” he added. “I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.”

His claims were rejected by the university’s lawyer but received no comment from the rest of the bench, which includes one African American justice.

Facebook Twitter Pinterest Abigail Fisher, who challenged the use of race in college admissions, at the US supreme court on Wednesday. Photograph: J Scott Applewhite/AP

“I don’t think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they’re going to inferior schools,” said Gregory Garre, lawyer for the University of Texas.

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“If this court rules that the University of Texas can’t consider race, we know exactly what will happen: diversity will plummet, especially among African Americans,” warned Garre.



“Now is not the time and this is not the case to roll back student body diversity in America,” he added, in apparent reference to a recent surge of concern about racial attacks on campuses such as the University of Missouri.



But chief justice John Roberts made clear he was impatient with the continued need for affirmative action in admissions policies.

“What unique perspective does a minority student bring to a physics class?” asked Roberts when presented with the argument that diversity was necessary to providing a better educational experience for all students. He also dismissed surveys designed to ask students how they felt as “sophomoric”.

The supreme court has previously allowed affirmative action in limited cases though has said it wanted to phase out because it was a form of racial discrimination.



Such programmes date back to the 1960s when they were first used to try to reduce racial segregation, but strict quotas were ruled unconstitutional by the court in 1978. Since another test case in 2003, race may now only be used as a factor if it can be shown to be essential in creating educational diversity in class.



In oral arguments on Wednesday, a narrow majority of conservative justices appeared sympathetic to the arguments put forward by Fisher’s lawyer that she was discriminated against.

Only eight justices heard the case as liberal stalwart Elena Kagan had to be recused due to her involvement at an earlier stage when she was a lawyer for the government.



Samuel Alito pressed the university to explain how it would meet court demands for affirmative action to be gradually phased out: “Are you going to hit the deadline? Is this going to be done in 12 years?”

Some of liberals warned the case could have dire consequences for diversity. “People in the universities are worried that we will kill affirmative action through a death by a thousand cuts,” said Stephen Breyer, who argued it was necessary to have a critical mass of minority students on campus.

“They are having racial incidents on campuses where students of colour are complaining that they feel isolated. What more do they need?” added justice Sonia Sotomayor.



Ruth Bader Ginsburg, who was the only justice to support UT in the last case, expressed concern that aspects of another programme it uses to encourage diversity by taking the top 10% of high school applicants provided a “disincentive for minority students to step out and attempt to get into integrated schools”.



Sotomayor agreed that if the court insisted upon an impractically high bar for the use of affirmative action, it would force other universities to adopt such a method of selection too.



“I have a worry that if you are needing a proof of compelling reason, will any holistic review ever survive?” she said. “Will every school have to use the 10% plan?”

But lawyers for Fisher argued it was not up to them to provide an alternative. “Strict scrutiny is a heavy burden. There is no question. That is why it is called strict scrutiny,” said Bert Rein. “This is not easy to do, and it’s not our job to show them how to do it.”

He also claimed that the combination of the two schemes at the University of Texas Austin campus had driven white students into a minority.



“Today they are a majority minority campus – they really are – just because of the demographics,” claimed Rein.



Justice Anthony Kennedy, who is likely to hold the swing vote when the eight justices consider their decision next year, worried that more information was necessary to move on from the court’s earlier indeterminate decision. “We are just arguing the same case, it’s as if nothing has changed,” he said.