What's different about the latest challenge to affirmative action?

GWEN IFILL: The Supreme Court returned today to the hotly debated, recurring dispute over race in college admissions.

The question whether affirmative action is constitutional has played out before the nation's high court before.

For the second time in three years, the justices are considering whether it is constitutional for universities to consider race in admissions. The lawsuit, then and now, was brought by Abigail Fisher, a white student from Texas who was denied admission to the University of Texas at Austin in 2008.

ABIGAIL FISHER, Plaintiff: Like most Americans, I don't believe that students should be treated differently based on their race. Hopefully, this race — this case will end racial classifications and preferences in admissions at the University of Texas.

GWEN IFILL: Fisher's case reached the high court the first time in 2012. Justices sent it back to the lower court for further review. She went on to graduate from Louisiana State University, but she never dropped her challenge to U.T.'s policy, which admits every Texan who ranks in the top 10 percent of their class. For the rest of the class, about 25 percent, race can be taken into account.

University of Texas President Gregory Fenves:

GREG FENVES, President, University of Texas: This morning, we argued before the Supreme Court that universities have a compelling interest in the educational benefits of diversity and that our use of race and ethnicity in the U.T.'s holistic admissions process is narrow, is constitutional, and is in the best interest of our state and the nation.

GWEN IFILL: The lower court ruled in favor of the university again last year, prompting the Supreme Court to take the case up again. The court has weighed in on affirmative action before. In 2003, it decided 5-4 to allow the University of Michigan Law School to use race as one factor in its admissions process.

But eight states have now banned the use of race altogether as a factor in admissions. Eight, instead of nine, justices will decide this case. Elena Kagan, who defended affirmative action as President Obama's solicitor general, has recused herself and will not participate.

We're joined now by two people of opposing views who listened to the arguments at the court today.

Janai Nelson, associate director counsel of the NAACP Legal Defense Fund, and Richard Kahlenberg, senior fellow at the Century Foundation.

Welcome to you both.

RICHARD KAHLENBERG, The Century Foundation: Thank you.

JANAI NELSON, NAACP Legal Defense Fund: Thank you.

GWEN IFILL: You were both in the court today. Presumably, you have been following this case very closely for some time. What was different today than we saw last time?

RICHARD KAHLENBERG: Well, I think there's a lot of similarity to what we saw last time.

I think University of Texas is in deep trouble with its defense of the racial preference programs. There's broad agreement in the court that diversity is a valuable thing. That's certainly something I believe in, but there's a big disagreement on how to get there.

Should we use race explicitly in our admissions policies, or should we do alternatives, such as giving a leg up to economically disadvantaged students? And, today, you heard Justice Alito, in particular, I thought was quite powerful in arguing that the alternatives are a better way of getting racial diversity.

Texas is in this awkward position because the top 10 percent plan did produce a lot of racial and ethnic diversity. So they're in this awkward position of having to argue, well, there's something wrong with the top 10 percent admitees. And so we want to get upper-middle-class students of color who will be more likely to be leaders.

And Alito went very hard at that, saying the top 10 percent students are ones who — a lot of them went to segregated high schools. They overcame odds. They ought to be our leaders.

GWEN IFILL: Richard Kahlenberg just said that this — everybody basically agrees that diversity is a good thing. Yet I noticed something that Justice Roberts, the chief justice, said today. He said, what unique perspective does a minority student bring to a physics class?

Do you see that there's general agreement that diversity, in and of itself, is a good thing?

JANAI NELSON: Well, I have to say that what was very heartening about the arguments today and the justices' receptivity of them was that not only is diversity something that universities should seek to achieve, but also there was a recognition that the court has held now four times that you can use race in admissions, that you can use it so long as it's constitutionally permissible, so long as you do it in a narrow way, and it fulfills a compelling governmental interest.

The comment that Chief Justice Roberts made really reflects perhaps some individual or personal lack of understanding about the contributions that diversity makes to the university setting.

But I think we can all agree that the Supreme Court has already spoken on this in a 5-4 decision, so we know that there are justices who may not agree with this. But we know that it is the law of the land that you can use race in admissions and that diversity is a compelling governmental interest.

GWEN IFILL: Let me read to you both — and we will put it up on the screen too — one another thing that one of the justices said.

And that's Justice Antonin Scalia, who said from the bench: "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."

And then he went on to say — well, let — didn't go on to say — we're going to move — OK.

"One of the 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."

Richard Kahlenberg, what did Justice Scalia mean by that?

RICHARD KAHLENBERG: Well, I personally don't think he helped his cause in suggesting that the classes are too hard for African-Americans, playing into those stereotypes.

I think the bigger issue, though, is what kind of diversity are we going to have on campus? Right now, we do a good job of bringing in upper-middle-class students of all colors, right? We have got 86 percent of African-American students today at the selective colleges are middle or upper class.

And the white students are even wealthier. So we're bringing in racial diversity, but we're not going further to socioeconomic diversity. And it seems to me that's where — Justice Scalia aside, Justice Kennedy is the key here in this case.


RICHARD KAHLENBERG: He's the deciding vote. And he has been pushing universities to say, we want you to get diversity, but try it in other ways.

And I think he's likely to pave the way in the ultimate decision for a more robust affirmative action that addresses our big economic divide, as well as our racial issues.

GWEN IFILL: Justice Kennedy always seems to be the hinge point in all of these debates.

But I guess one of the reasons I was curious about what Justice Scalia said, Janai Nelson, is because there's been a — one thing that has changed since last time is there's this matchup of all these college protests, in which people feel that maybe they don't fit in and they don't fit in their campus, they haven't had enough attention paid.

Did you have any sense that that was affecting any of the reasoning of the justices today in listening to this case again?

JANAI NELSON: I can't say that it necessarily affected the justices, but I can say that Justice Scalia's very unfortunate and misguided comment in that philipic against African-Americans and every other minority in terms of whether they can compete with others in a highly competitive higher education setting, what it reveals is that he doesn't have faith in the concept of diversity and what it does for all students.

Also, I think what was packed in there was a pot shot, frankly, against our historically black colleges and universities that have served African-Americans at a time when this country wouldn't and continue to provide a space for African-Americans to thrive.

I don't think he realized that he also really affirmed the notion that black students, like all students, need a university environment in which there are high expectations for them, in which they are welcomed, in which they are provided opportunities. And the University of Texas is seeking to do that through this very thoughtful admissions process.

GWEN IFILL: I want to ask you both, based on what you heard today and what you have heard in the past, what do you think the court is wrestling with at this stage? I know Justice Kennedy said at one point he needed more information.


Well, he said that early on in the arguments. And then, when he was pressing Texas to say, well, what new information could you provide, I think he pulled back from that a little bit.

I think what — we're likely to have a decision some time this year. I think we're going to see a brand-new affirmative action come out of this. So, instead of basing our decisions on which, you know, racial box a student checks, it will be based on alternatives that Justice Kennedy likes, things like socioeconomic affirmative action, to give a leg up to students who are — you know, the — it would give a leg up to the young Michelle Obama, the young Sonia Sotomayor, who grew up in public housing, but not to Michelle — to Sasha and Malia.

GWEN IFILL: I would like you to have a chance to respond. Go ahead.


We think that an equal opportunity for everyone, regardless of their socioeconomic background, should be afforded to them. Clearly, we care about economic diversity. And that is certainly one of the many factors that the University of Texas considers when determining how it will compose its diversity in its entering freshman class.

And there's no reason to think that we have to choose race or class. We can consider the complexity of an individual in his or her entirety, their race, their class, their language, their parental background, whether they're from a single-family household, their geography. All of those play into creating the whole person.

GWEN IFILL: All right, we will obviously, as always, know something by June.

Richard Kahlenberg the Century Foundation, Janai Nelson of the NAACP Legal Defense Fund, thank you both.


JANAI NELSON: Thank you.