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Supreme Court Poses Tough Questions in Affirmative Action Case

iStockphoto/Thinkstock(WASHINGTON) -- At the Supreme Court Wednesday, the conservative justices had questions for a lawyer defending the University of Texas’ plan that takes race into consideration in the admissions process.

One of their main concerns goes to the heart of the case: at what point does the court stop deferring to a university’s judgment that the consideration of race is still necessary?

“I understand my job under our precedents is to determine if your use of race is narrowly tailored to a compelling interest," Chief Justice John Roberts said to Gregory Garre, a lawyer representing the University of Texas. “The compelling interest you identify is attaining a critical mass of minority students at the University of Texas, but you won’t tell what the critical mass is. How am I supposed to do the job that our precedents say I should do?”

It was only recently, in 2003, that the Supreme Court narrowly upheld the limited use of race in public universities in a decision called Grutter v. Bollinger. The 5-4 opinion was authored by Justice Sandra Day O’Connor, who said that diversity was a compelling government interest.

In the Grutter decision, O’Connor said that the University of Michigan Law School could use race in a “flexible non-mechanic way” as one factor among many in an effort to assemble a student body that is diverse in ways broader than race. “We expect,” O’Connor wrote, “that 25 years from now, the use or racial preferences will no longer be necessary.”

Garre said that Texas had closely followed Grutter when it implemented its own program with a goal of assembling “a broadly diverse student body.”

Chief Justice John Roberts broke in: “Should someone who is one-quarter Hispanic check the Hispanic box or some different box? ”

As Garre tried to explain the various boxes that students check on their own determination, Roberts pressed on.

“What about one eighth?” Roberts was getting to the issue of race and building toward his central question and his frustration with a definition for “critical mass.”

“What is the critical mass of African Americans and Hispanics at the university that you are working toward?” Roberts asked.

Garre responded that there was no hard number.

None of this was a good sign for the University of Texas plan, which is being challenged by Abigail Fisher, a white Texan who was denied admission to the school in 2008. She argues that she was subject to unequal treatment in violation of the Fourteenth Amendment.

The liberal justices seemed more accepting of UT’s plan. Justice Ruth Bader Ginsburg said, “This program is certainly no more aggressive than the one in Grutter; it’s more — in fact, more modest.”

Justice Stephen Breyer pointed out how recently the court upheld Grutter. “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. ”

Copyright 2012 ABC News Radio

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