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| Justice Scalia: minority students may be better off where 'they don't feel pushed too hard' | Justice Scalia: minority students may be better off where 'they don't feel pushed too hard' |
| (34 minutes later) | |
| The number of black students on US college campuses could “plummet”, the supreme court was warned on Wednesday, as it 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. | The number of black students on US college campuses could “plummet”, the supreme court was warned on Wednesday, as it 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 did not meet UT’s academic entry requirements and graduated two years ago from Louisiana State University instead, but her test case has returned to America’s highest court for a second time with the potential for ending affirmative action across the country. | Abigail Fisher did not meet UT’s academic entry requirements and graduated two years ago from Louisiana State University instead, but her test case has returned to America’s highest court for a second time with the potential for ending affirmative action across the country. |
| Related: Supreme court ruling against affirmative action would be 'devastating' – activists | Related: Supreme court ruling against affirmative action would be 'devastating' – activists |
| “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 Gregory Garre, lawyer for the University of Texas. | “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 Gregory Garre, lawyer for the University of Texas. |
| “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. | “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. | 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 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”. | “What unique perspective does a minority student bring 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”. |
| A narrow majority of conservative justices appeared sympathetic to the arguments put forward by Fisher’s lawyer that she was discriminated against. | A narrow majority of conservative justices appeared sympathetic to the arguments put forward by Fisher’s lawyer that she was discriminated against. |
| Justice Anton Scalia argued many racial minority students would be better off at “lesser schools” where “they don’t feel they are being pushed too hard”. | Justice Anton Scalia argued many racial minority students would be better off at “lesser schools” where “they don’t feel they are being pushed too hard”. |
| “I don’t think it is automatically a good thing for UT to try to admit as many blacks as possible,” he said. | |
| The supreme court has previously allowed affirmative action in limited cases but has said it wanted to phase out because it was a form of racial discrimination. | The supreme court has previously allowed affirmative action in limited cases but has said it wanted to phase out because it was a form of racial discrimination. |
| 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. | 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. |
| Some of those remaining 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 thousands cuts,” said Stephen Breyer, who argued it was necessary to have a critical mass of minority students on campus. | Some of those remaining 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 thousands 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. | “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. |
| 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?” | 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?” |
| Even 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”. | Even 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 university’s to adopt such a method of selection too. | Sotomayor agreed that if the court insisted upon an impractically high bar for the use of affirmative action, it would force other university’s 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?” | “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.” | 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. | 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. | “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 in the case. “We are just arguing the same case, it’s as if nothing has changed,” he said. | 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 in the case. “We are just arguing the same case, it’s as if nothing has changed,” he said. |