Scalia stokes controversy as Supreme Court hears arguments on affirmative action

Still torn over race, the Supreme Court on Wednesday weighed whether it's time to end the use of race in college admissions nationwide -- or at least at the University of Texas.

With liberal and conservative justices starkly divided, the justice who almost certainly will dictate the outcome suggested that the court may need still more information to make a decision in a Texas case already on its second trip through the Supreme Court.

"We're just arguing the same case," Justice Anthony Kennedy said, recalling arguments first held in 2012 in the case of Abigail Fisher. "It's as if nothing has happened."

Kennedy said additional hearings may be needed to produce information that "we should know, but we don't know" about how minority students are admitted and what classes they take to determine whether the use of race is necessary to increase diversity at the University of Texas.

Justice Antonin Scalia at one point during the arguments said, "There are those who contend that it does not benefit African­ Americans to ­­ to get them into the University of Texas where they do not do well, as opposed to having them go to a less-­advanced school, a slower-­track school where they do well," as opposed to Texas' flagship campus in Austin. There, he said, some are "being pushed ahead in classes that are too fast for them." Scalia went on to add that one brief submitted in the case had said that "most of the black scientists in this country don't come from schools like the University of Texas....They come from lesser schools where they do not feel that they're that they're being pushed ahead­­ in classes that are too ­­ too fast for them."

Garre countered that over time the academic performance of the holistic minority improves, and the solution could not be "to set up a system in which not only are minorities going to separate schools, they're going to inferior schools."

• Affirmative action in conservative Supreme Court's crosshairs

The Rev. Al Sharpton, who attended the oral arguments, told reporters outside the court that he was concerned when he heard "Scalia suggest that maybe blacks do better at schools that maybe aren't as fast as UT. I didn't know if I was at the courtroom at the United States Supreme Court or at a Donald Trump rally."

Actress Rashida Jones denounced the comment as racism in a series of tweets:

The proceedings won't change anything for Fisher, who ended up attending Louisiana State University and graduated from college in 2012, but the justices' renewed interest in her case appeared to be a sign that the court's conservative majority is poised to cut back, or even end, affirmative action in higher education.

Their skepticism about it was on display during more than 90 minutes in a packed courtroom. Chief Justice John Roberts asked, "What unique perspective does a minority student bring to a physics class?" He was challenging a part of Texas' argument that says its program is needed to increase diversity at the classroom level.

It was not clear from the arguments whether Kennedy would go as far as his conservative colleagues to deal a blow to race as a factor in college admissions.

Potentially complicating the outcome, Justice Elena Kagan, who was once the solicitor general, is sitting out the case because she worked on it at an earlier stage at the Justice Department, before joining the court. Her absence creates the possibility of a 4-4 split. That would resolve the case in Texas' favor, but say nothing about the issue nationally. The other three liberal justices appeared solidly in favor of the Texas program.

The arguments focused on whether the university has compelling reasons to consider race among other factors when it evaluates applicants for about one-quarter of its freshman class. Most students are admitted to the university through a plan that guarantees slots to Texans who graduate in the top 10 percent of their high school classes.

Fisher says the "top 10" program works well to bring in Hispanic and African-American students, without considering race. Bert Rein, representing Fisher, said the university can take other steps to diversify its student body without explicit reference to race, including reducing its reliance on standardized test scores.

But Justice Sonia Sotomayor, who has said she benefited from affirmative action, said Rein was calling on Texas to take steps that would "reduce its educational quality." Justice Clarence Thomas, an affirmative action opponent who has said he felt stigmatized by racial preferences, was customarily silent during the arguments.

Texas says the "top 10" program alone is not enough and that the school needs the freedom to fill out incoming classes as it sees fit. Gregory Garre said on behalf of the university that minority enrollment plummeted at top public universities in California and Michigan after they ended the consideration of race.

"Now is not the time and this is not the case to roll back student-body diversity in America," Garre said.

Justice Samuel Alito said the university is engaging in "terrible stereotyping" by suggesting there is something "deficient about the African-American students and the Hispanic students who are admitted under the top 10 percent plan."

Twelve years ago, the justices reaffirmed the consideration of race in the quest for diversity on campus. Their decision set a goal of doing away with such programs in 25 years.

"When do you think your program will be done?" Roberts asked Garre, who would not provide a date.

The court first heard Fisher's case in 2012; the case ended inconclusively with a tepid decision that ordered a lower court review. The federal appeals court in New Orleans has twice upheld the Texas admissions program and rejected Fisher's appeal.

Fisher's case was conceived by Edward Blum, an opponent of racial preferences. Blum also is behind lawsuits against Harvard University and the University of North Carolina that aim to eliminate any consideration of race in college admissions.

Outside the court, protesters sided with the university. In a statement, the school's president said, "We are hopeful the Supreme Court will reach the same conclusion as the lower courts and enable all of our students to receive the full educational benefits of diversity."

Texas is unique in marrying the top 10 plan to a separate admissions review in which race is one of many factors considered. The university's current freshman class is 22 percent Hispanic and 4.5 percent African-American. White students make up less than half the school's freshmen.

• Supreme Court won't hear challenge to assault weapons ban

Eight states prohibit the use of race in public college admissions: Arizona, California, Florida, Michigan, Nebraska, New Hampshire, Oklahoma and Washington.

The Obama administration, dozens of colleges and many of the nation's largest businesses support Texas in defending its program.

There also are competing arguments over whether racial preference programs actually limit the number of students from Asian backgrounds, who are disproportionately represented in student bodies relative to their share of the population.

A decision in Fisher v. University of Texas at Austin, 14-981, is expected by late June.

CBS News' Paula Reid contributed to this report

In:
• Al Sharpton
• Antonin Scalia