More than three-fourths of freshmen enroll at the University of Texas through a state law that gives automatic admission to students in the top 10 percent of their high school classes. For the rest, the school considers a number of factors, including race.
Two white students denied UT admission under the policy challenged it in federal court.
A three-judge appellate panel upheld the admissions policy, and the full 5th U.S. Circuit Court of Appeals, one of the most conservative in the country, refused to rehear the case by a vote of 9-7.
The majority said UT's admissions program was "narrowly tailored," as required by the 2003 Supreme Court precedent in Grutter vs. Bollinger.
But Wednesday, the admissions policy appeared to be in trouble with at least four conservative justices, SCOTUSBLOG.com reported. Kennedy showed some doubt, the report said, and appeared in the end not to be convinced of its constitutionality, the report said.
The case was heard by Kennedy and the four members of the conservative bloc. The liberal bloc, expected to support the policy, was reduced from four to three because of the withdrawal of Justice Elena Kagan, who was U.S. solicitor general in the early phases of the case.