Richard Wolf and Mary Beth Marklein, USA TODAY
WASHINGTON - The Supreme Court openly struggled Wednesday with the racial preferences used by the University of Texas to achieve student diversity, as several conservative justices questioned how much is enough to declare affirmative action programs no longer necessary.
Programs used by university admissions offices nationwide hung in the balance as the court took up the case of Fisher v. University of Texas, where Abigail Fisher, a 22-year-old Texan, claims she was denied admission to the school's flagship campus in Austin because she was white.
Several liberal justices implied that a new ruling from the high court changing the rules laid down in a 2003 University of Michigan case would create havoc not only for admissions offices but for district courts across the country charged with interpreting the law.
But conservatives - who may command five votes on the court - appeared dissatisfied with the current standard for achieving a "critical mass" of minority students, particularly because it's so difficult to define.
The conservative justices also wondered whether universities can tip the balance between two equally qualified students toward the one who is black or Hispanic.
"I thought the whole point was that sometimes race has to be a tie-breaker," said Justice Anthony Kennedy, the potential swing vote on the court.
Outside the court house, Fisher spoke just one sentence to reporters before turning questions over to her lawyer, Bert Rein.
"I hope the court realizes that a student's race and ethnicity should not be considered" in admissions, she said.
Rein praised Fisher, who has since graduated from Louisiana State University for having the "courage and perseverance to stand up for what was right." He said that she will continue to suffer the consequences of not having a degree from Texas's flagship campus in Austin.
"It is critical to be a University of Texas graduate in Texas," he said. "She can't have that back."
Of the justices, he said, "the court asked a number of hard and fair questions, and I felt we had a good opportunity to present our side. Now the job is not ours, it's theirs."
Gregory Garre, who argued for Texas's use of racial preferences before the Court, called the session "a very spirited discussion with tough questions for both sides."
University of Texas president Bill Powers said a ruling against Texas "would be a setback for the university and society."
The case is the latest in a long line of affirmative action cases going back to 1950, when the Supreme Court backed Heman Sweatt's effort to be enrolled in Texas' flagship Austin campus. Four years later came the landmark case of Brown v. Board of Education outlawing public school segregation.
Those eager to watch as the justices consider the case arrived as early as 5:30 p.m. Tuesday and camped out on the sidewalk outside the court.
A group of third-year students from American University's Washington College of Law arrived at 7:30 p.m. to witness history. They were supporters of affirmative action who wondered why the high court even took Abigail Fisher's case in the first place.
"Being in law school in D.C., we wanted to make sure we took the opportunity to be here," said Preston Smith, 24, of Durham, N.C.
Demonstrators on both sides of the issue crowded the sidewalk outside the court early Wednesday morning.
Inside the court attorneys for the university argued that race is never considered alone, but only as part of a holistic approach that takes a variety of factors into consideration. They admitted, however, that one goal is to increase the percentage of black students on campus.
The school uses a "Top 10 Percent" plan, through which students in the top 10% of their high school graduating classes are automatically admitted to the state university of their choice. That has helped schools boost racial diversity, primarily because most of the state's public high schools are segregated by race and ethnicity.
But because that does not create a "critical mass" of racial groups, the school also considers race in filling out the rest of each year's class.
Since four justices are known to oppose the use of race as a major factor in admissions and Kennedy has expressed skepticism about numerical targets or quotas, much of the 80-minute oral argument focused on a key question: When is a "critical mass" of minorities achieved, and who makes that call?
Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito expressed skepticism with Texas' effort to achieve diversity even in small classrooms, particularly when some students may have a mixed-race background.
"What's the logical end point?" Roberts asked.
"Mass assumes numbers," Scalia said - and numbers are what the law seeks to avoid. He quipped it should be renamed "a cloud or something."
The lawyers seemed particularly focused on Kennedy, however, since he dissented from the Michigan decision that upheld the limited use of racial preferences. That 2003 case remains the law of the land, but Kennedy and the other four conservative justices, including Clarence Thomas, could overrule it in this case.
Solicitor General Donald Verrilli, backing up the university's use of affirmative action, directed much of his argument to Kennedy directly.
"There's no quota" in the university's use of racial preferences, Verrilli said. "Everyone competes against everyone else."
The last time the court ruled on affirmative action was in 2003, when it upheld the University of Michigan Law School's limited use of racial preferences but overruled a numerical system used by the undergraduate school.
Conservatives who have backed Fisher's case are hoping the court won't just throw out Texas' system but overrule the 2003 Grutter v. Bollinger decision - in essence, eliminating racial preferences in college admissions. That would force both public and private schools to change the way they give preferences to blacks and other minorities whom they consider underrepresented on their campuses.
Proponents of affirmative action - including many University of Texas students who traveled to Washington for a protest outside the court on Wednesday - hope the school's program will be upheld. The court could strike it down in a more narrow fashion that does not affect other schools.
The court has taken a turn to the right since its last ruling upholding affirmative action in 2003. Now, five justices are on record opposing the practice, with Justice Anthony Kennedy considered the crucial fifth vote.
Justice Elena Kagan has recused herself from the case, presumably because she was involved with it while serving as solicitor general in 2009-10.
The court's rightward turn could mean defeat for the university and, possibly, a sweeping declaration that racial preferences at public colleges and universities are unconstitutional. Such a landmark decision, while considered unlikely, would have even broader impact, casting aside affirmative action programs at private schools such as Harvard and Yale as well because they receive federal funds.
The vast majority of higher education groups defend their policies. In brief after brief submitted to the Supreme Court, organizations representing nearly all facets of higher learning - including public research universities, Ivy League schools, undergraduate and law students, even college basketball coaches - argue that colleges and universities must be allowed to consider race and ethnicity in admissions to achieve the educational benefits of a diverse student body.
Some say nothing less than the nation's future is at stake.
If the Texas plan is declared unconstitutional, Marie Bigham, director of college counseling at the highly diverse Greenhill School in the Dallas suburb of Addison, predicts a chilling effect.
"My students of color, I worry they're going to say that 'these places don't value what I bring,'" she said. White students, too, will look elsewhere, she said.
"When my students are shopping for colleges, (diversity) is an important data point for them," Bigham said. "We're going to lose out on a lot of great kids."
But that's just why opponents argue against racial preferences -- to protect the rights of Fisher and others who they say are victims of discrimination when universities ignore their superior qualifications.
"Nowhere in the Constitution or the Declaration of Independence does the word 'diversity' appear," a group of Texas faculty members argue in a brief supporting Fisher. "There is no constitutional basis for the courts, let alone a state university, to engage in such a radical restructuring of America, allocating education, jobs and contracts based on race."
A decision on the case is expected in the spring.