The race-conscious admissions policy at the University of Texas appeared to be in trouble on Wednesday after the conservative Supreme Court majority repeatedly questioned its continued application and effectiveness.
The Justices heard oral arguments in an affirmative-action case that explores whether the flagship state university's admissions practices aimed at creating campus diversity violate the rights of some white applicants.
Abigail Noel Fisher sued the school after her application was rejected in 2008 when she was a high school senior in Sugar Land, Texas.
Fisher claimed the individualized, discretionary admission policies violated her rights, and favored African-American and Hispanic applicants over whites and Asian-Americans.
Fisher just missed the opportunity of automatic admission to the main campus at Austin for in-state students finishing in the top 10% of their high school graduating class. So, she had to compete in a separate pool. It is that selection process that is before the court.
The Supreme Court was clearly divided along ideological lines about whether affirmative action essentially has run its social and legal course, and should no longer be used in the way schools like Texas and others have done.
"You're trying to gut it," Justice Sonia Sotomayor said to Fisher's lawyer about the current legal precedent set in 2003.
She suggested that a university deserves some flexibility to create the kind of diverse campus environment it wants.
But Chief Justice John Roberts repeatedly asked, "What is the 'critical mass' of African-Americans and Hispanics at the university that you are working toward?"
When the school's lawyer said there was no specific number, Roberts pressed, "So how are we supposed to tell whether this plan is narrowly tailored to that goal? What is the logical end point?"
Justice Anthony Kennedy may prove the deciding or "swing" vote and could strike a compromise position -- possibly toss out the specific plan in question, while generally preserving the future use of affirmative action in more limited circumstances.
The school, with a 52,000-student body, defends its "holistic" policy of considering race as one of many factors -- including test scores, community service, leadership and work experience.
UTSA: We do not consider race
The University of Texas at San Antonio says it does not consider race when deciding whether to accept student applicants
"Fortunately for us here at UTSA, that happens naturally," said Associate Vice President of Student Affairs, who oversees admissions. "The geographic area where we draw students from is diverse both racially and ethically."
Students on campus KSAT spoke to tend to on Wednesday agree.
"If you look around, there are people from everywhere," said Melvin Obregon. "Different cultures, different religions."
Even though it's part of the UT system, UTSA has its own unique admissions criteria which are approved by the UT Board of Regents.
It automatically accepts students in the top 25 percent of their high school graduating class.
As for the affirmative action case involving UT, Norton thinks the impact may not be as far reaching as some might expect.
"I think the impact will be as much political as impactful," said Norton.
Obama administration backs UT
"Everyone competes against everyone else. Race is not a mechanical automatic factor. It's an holistic individualized consideration," said U.S. Solicitor General Donald Verrilli.
African-Americans in Texas as a whole represent about 12% of the population, but comprise about 5% of students at the University of Texas.