The Supreme Court appears torn over the use of race in college admissions and may not be ready to make a decision without more information.
Several justices on Wednesday asked about the value of ordering more hearings in a case from Texas that they've now heard twice. Additional evidence might determine whether the use of race is necessary to increase diversity at the University of Texas.
The justices rehashed many of the same arguments they discussed three years ago in the case of Abigail Fisher. Justice Anthony Kennedy — who's crucial to the outcome — said there's information "we should know and don't know."
Their skepticism about the issue was on display during more than 90 minutes in a packed courtroom.
Conservative Justice Antonin Scalia questioned whether some minority students are harmed by the policy because it helped them gain admittance to schools where they might not be able to academically compete.
"There are those who contend that it does not benefit African Americans 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," Scalia said referencing an amicus brief.
Other justices had similar questions.
"What unique perspective does a minority student bring to a physics class?" Chief Justice John Roberts asked at one point, challenging a part of Texas' argument that says their program is needed to increase diversity at the classroom level.
Opponents of affirmative action in college admissions are hoping they can cripple the positive discrimination measure — if not outright kill it.
The University of Texas at Austin says students learn better when there's diversity on campus and within racial groups. But lawyers for a woman who was denied admission to the school say that's too vague a standard to justify distinctions based on race.
Potentially complicating the outcome, Justice Elena Kagan 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 Supreme Court gave a limited victory to the university two years ago, agreeing that campus diversity is a worthy goal. But it instructed the Fifth Circuit Court of Appeals to review whether considering an applicant's race in college admissions was necessary to achieving it.
Related: More than 160 Asian-American Groups File Briefs in Support of Affirmative Action
When the appeals court ruled in favor of Texas, opponents went back to the Supreme Court, and the justices agreed to take another look — even though the student, Abigail Fisher, graduated from a different university three years ago and is well past having a direct stake in the outcome.
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