Kennedy added: “Well… then we should just say you can’t use race, don’t worry about it.”
The case could become a major legal precedent should the justices impose significant new limits on the use of race in college admissions. Such a ruling would force admissions officers and affirmative-action officials across the country to develop race-neutral methods to fill their class rosters.
The last major test of the issue was in 2003 when the court upheld by a 5-to-4 vote the use of race in admissions to the University of Michigan Law School.
Retired Justice Sandra Day O’Connor, who provided the crucial fifth vote in that case, attended Wednesday’s oral argument, seated with court personnel and lawyers near the front of the courtroom. Meanwhile, on the sidewalk outside the court, scores of demonstrators chanted and cheered in support of affirmative action.
At issue in the case is whether the University of Texas is justified in its use of race as one of many factors in deciding which students to admit to the incoming freshman class.
The school admits 75 percent of its new students under a state law that requires the university to offer places to every student in Texas who graduates in the top 8 to 10 percent of his or her high school class.
Because of segregated housing patterns in the state, the program accounts for a significant level of minority enrollment at the state’s flagship university. School officials sought to fine-tune the racial makeup of the entering class by using a multifactor admissions process that includes consideration of the candidate’s race for the remaining 25 percent of entering freshman.