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Supreme Court: In affirmative action arguments, conservative bloc seems united

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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.

The case stems from a lawsuit filed by a white student, Abigail Fisher, who was denied admission.

Ms. Fisher charged that less qualified black and Latino candidates were admitted in violation of her constitutional right to equal treatment.

Lawyers for the university counter that the Texas affirmative-action plan complies with the terms approved in the 2003 Michigan Law School case. In that decision, the Supreme Court approved the limited use of race in affirmative-action programs designed to foster a “critical mass” of minority enrollment.

Gregory Garre, arguing for the University of Texas, said that while the state’s top 10 percent admissions program significantly boosted minority enrollment, it could not produce a truly diverse student body.

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