Supreme Court divided over affirmative action in college admissions The case comes from the University of Texas at Austin, which draws about 75 percent of its freshman class based on their graduation rankings from Texas high schools. For the remaining students, it uses a "holistic" evaluation that includes race as one of many factors. A white applicant named Abigail Fisher says those attempts to boost the number of African American and Hispanic students cost her a spot in the freshman class of 2008. The court since 1978 has recognized that promoting diversity on the nation's campuses allows a limited consideration of race that normally the Constitution would not countenance. As recently as 2003, in a case called Grutter v. Bollinger, the court held that universities may consider race when striving toward reaching a "critical mass" of diversity that benefits all. Liberals on the court noted that the majority said then that it expected no such racial considerations would be needed in 25 years. "I know that time flies, but only nine of those years have passed," Justice Stephen G. Breyer said. What has changed, though, is the court's composition. The 5 to 4 Grutter decision was written by Justice Sandra Day O'Connor, who has been replaced on the court by Justice Samuel A. Alito Jr. Alito has proven to be a fierce opponent of race-specific government policies. The change was underscored when O'Connor entered the courtroom a little after the nearly 11 / 2-hour argument began and took a seat on the front row, where retired justices normally sit to watch proceedings. Fisher's attorney, Bert Rein, did not ask the court to overturn Grutter. He said UT had failed to narrowly tailor its examination of race and said it had not shown the necessity for racial considerations that Grutter demanded. UT, he said, had become one of the nation's most diverse universities because of the policy of admitting the top 10 percent of each Texas high school, which yield a diverse crop of students because the schools are often heavy with one race. UT should be using racial considerations as a last resort, Rein said, but is using them "as a first resort." Justice Sonia Sotomayor said Rein was not proposing to overturn Grutter but "to gut it." When Washington lawyer Gregory G. Garre rose to defend UT's plan, he faced rapid questioning from the conservatives, who wanted to know how they were supposed to judge whether UT's plan was narrowly tailored when it had no standard of what constituted the "critical mass" of diversity that Grutter allowed. Chief Justice John G. Roberts Jr. pursued Garre relentlessly on the question. Garre said that he could not provide specific goals - those would be like quotas, which are not allowed. He said there should be deference to university officials, who would know from student surveys and other indications whether they had created a campus with an accepting racial climate, a place where there was enough diversity that minority students did not feel like spokespeople for their race. Roberts suggested that the university was downplaying its reliance on race, saying it is the only factor listed on the front of every applicant's file. Alito was scornful of UT's argument that it wanted "diversity within diversity," a point made in UT's brief about wanting to be able to admit the black or Hispanic child of parents with professional careers who had not made the top 10 percent in a competitive high school. "I thought the whole purpose of affirmative action was to help the disadvantaged," Alito said. That prompted Kennedy to tell Garre, "What you're saying is race counts above all." Garre disputed that, saying UT only wanted to ensure all sorts of diversity. The case was heard before only eight justices. Justice Elena Kagan recused herself, presumably because she worked on it as President Obama's solicitor general. Her successor, Donald B. Verrilli Jr., told the court that it should uphold UT's plan and that making sure the nation's top universities produce diverse leaders is a "vital interest" of the United States. If the justices deadlock on the policy, it would be upheld without setting a precedent.