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Selected quotes from Supreme Court affirmative action arguments

By Bill Mears, CNN Supreme Court Producer
updated 11:21 AM EDT, Sun June 9, 2013

(CNN) -- The Supreme Court in coming days will issue a ruling on whether racial criteria can be used in the admissions process at the University of Texas.

To understand the myriad legal and social issues facing the justices in this affirmative action dispute, and to gauge how they might rule, here is what they and lawyers in the case said at oral arguments last October.

See official transcript

Audio recording of arguments

A lawsuit by a white woman, Abigail Noel Fisher, who claims she was rejected from admission to the school because of her race.

The university maintains a two-tier admissions policy: automatic acceptance to in-state high school students in the top 10 percent of their class, a race-neutral method.

For the other quarter of applicants, race is one several criteria justified by the university to maintain a diverse campus.

A summary of major upcoming Supreme Court decisions

Bert Rein, attorney for former student Abigail Fisher:

"The central issue here is whether the University of Texas at Austin can carry its burden approving that its use of race as an admissions-plus factor in the consequent denial of equal treatment, which is the central mandate of the Equal Protection Clause, to Abigail Fisher."

Justice Antonin Scalia:

"Her claim is not necessarily that she would have been admitted, but that she was denied a fair chance in the admission lottery. Just as when a person is denied participation in the contracting lottery, he has suffered an injury."

Justice Stephen Breyer:

A 2003 high court precedent known as the "Grutter" case upholding the limited use of race in college admissions to promote diversity "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. And, if so, why overrule a case into which so much thought and effort went and so many people across the country have depended on?"

Justice Ruth Bader Ginsburg:

"If we had no 10 percent [admission policy] solution, under Grutter (the 2003 precedent) would this plan be acceptable? ... Then the question is can you have both? But it seems to me that this (UT) program is certainly no more aggressive than the one in Grutter; it's more modest."

Justice Sonia Sotomayor:

"You can't seriously suggest that demographics aren't a factor to be looked at in combination with how isolated or not isolated your student body is actually reporting itself to feel?"

Rein:

"Well, I think if you start to split out subgroups of minorities, you mistake I think what I think is the proper thrust of [the 2003 precedent], or at least ought to be."

Sotomayor:

"It might be insulting to some to be thrown into a pot."

Justice Anthony Kennedy (to Rein):

"You argue that the University's race-conscious admission plan is not necessary to achieve a diverse student body because it admits so few people, so few minorities. And I had trouble with that reading the brief. I said, well, if it's so few, then what's the problem? ... Then -- let's assume -- that it resulted in the admission of many minorities. Then you'd come back and say, 'oh, well, this shows that we [some white applicants] were probably wrongly excluded.' I see an inconsistency here."

Justice Ruth Bader Ginsburg:

"The only reason that they instituted the 10 percent plan was to increase minority enrollment. And the only way it works is if you have heavily separated schools. I mean, if you want to go to the University of Texas under the 10 percent plan, you go to the low-performing school, you don't take challenging courses, because that's how you'll get into the 10 percent. So maybe the university is concerned that that is an inadequate way to deal with it" as an exclusive stand-alone admissions policy.

Justice Stephen Breyer:

"There are several thousand admissions officers in the United States, several thousand universities, and what is it we're going to say here that wasn't already said in [the 2003 precedent] that isn't going to take hundreds or thousands of these people and have federal judges dictating the policy of admission of all these universities?"

Justice Sonia Sotomayor:

"As I understand their [the university's] position, race is balanced against other issues like socio-economics, the strength of the classes people took. It's never a stand alone. So even a white student, I presume, who goes to an entirely black or an entirely Latino [high] school, who becomes class president would get some points because he has or she has proven that they foster or can deal in a diverse environment. That's how I understood their plan; that it's not just giving you a plus because of race, it's combining that with other factors."

Justice Antonin Scalia:

"How do they decide? You know, they want not just a critical mass in the school at large, but class by class? How do they figure out that particular classes don't have enough? What, somebody walks in the room and looks them over to see who looks -- who looks Asian, who looks black, who looks Hispanic? Is that how it's done?"

Justice Samuel Alito:

"I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don't think I've ever seen before. The top 10 percent plan admits lots of Hispanics and a fair number of African Americans. But you say, 'well, it's -- it's faulty, because it doesn't admit enough African Americans and Hispanics who come from privileged backgrounds.' And you specifically have the example of the child of successful [minority] professionals in Dallas. Now, that's your argument?

If you have an applicant whose parents are -- let's say one of them is a partner in your law firm in Texas, another one is a corporate lawyer. They have income that puts them in the top 1 percent of earners in the country, and the parents both have graduate degrees. They deserve a leg-up against, let's say, an Asian or a white applicant whose parents are absolutely average in terms of education and income?"

Gregory Garre, attorney for the university:

"Because, your honor, our point is, is that we want minorities from different backgrounds. We go out of our way to recruit minorities from disadvantaged backgrounds."

Justice Anthony Kennedy:

"So what you're saying is that what counts is race above all. ... You want underprivileged of a certain race and privileged of a certain race. So that's race."

Chief Justice John Roberts (to Garre):

"What is the critical mass of African Americans and Hispanics at the university that you are working toward?"

Garre:

"Your honor, we don't have one."

Roberts:

"So how are we supposed to tell whether this plan is narrowly tailored to that goal?"

Justice Anthony Kennedy:

"I don't understand this argument. I thought that the whole point is that sometimes race has to be a tie-breaker and you are saying that it isn't. Well, then, we should just go away. Then we should just say you can't use race, don't worry about it."

Chief Justice John Roberts:

"If it doesn't make a difference, then we have a clear case; they're [the university] using race in a way that doesn't make a difference. The supposition has to be that race is a determining factor [in admissions] ... unless it's a determining factor, in some cases they're using race when it doesn't serve the purpose at all. That can't be the situation."

Donald Verrilli, U.S. Solicitor General in support of the UT policy:

"Everyone competes against everyone else. Race is not a mechanical automatic factor. It's an holistic individualized consideration. And because of the way the process is structured, they do not monitor the racial composition on an ongoing basis."

Justice Sonia Sotomayor (to Rein):

"So you don't want to overrule [the 2003 precedent], you just want to gut it.... You don't want to overrule it, but you just want to gut it."

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