Affirmative Action At Supreme Court: University Of Texas Program Had A Bad Day
"But in the past, Kennedy has theoretically accepted race-conscious measures only as a last resort when all race-neutral alternatives have failed, and even then, the race-based decision has to be made in exacting terms.
Indeed, Kennedy turned decisive after Justice Alito asked Garre why, all else being equal, black or Hispanic students from privileged backgrounds "deserve a leg-up against, let's say, an Asian or a white applicant whose parents are absolutely average in terms of education and income." Garre's response that intragroup diversity of experience was important to the university as well made no apparent impact on Kennedy.
"What you're saying is that what counts is race above all," Kennedy said.
By the end of the oral argument, which Roberts permitted to go almost 20 minutes beyond its originally allotted hour, the Supreme Court's liberals looked dispirited. They were already one member down. Justice Elena Kagan -- who actually knows the inner workings of affirmative action in higher education from her time as Harvard Law School's dean -- recused, presumably due to her involvement as U.S. solicitor general in earlier proceedings of the case."
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