Court calls for tougher scrutiny of affirmative action

Richard Wolf and Brad Heath | USA TODAY

Show Caption Hide Caption AP Reporter:Limited impact of race-based ruling Leaving unsettled many of the basic questions about the continued use of race as a factor in college admissions, the Supreme Court has sent a Texas case on race-based college admissions back to a lower court Monday. (June 24)

White student%27s case against University of Texas took eight months to decide

First major ruling on racial preferences at universities in 10 years

Case was one of the biggest on high court%27s docket for 2012-13

WASHINGTON — The Supreme Court drew new limits on colleges' use of affirmative action Monday, saying that although racial preferences remain constitutional, they are permissible only if schools can first show that there are "no workable race-neutral alternatives."

The court's 7-1 decision, written by Justice Anthony Kennedy, suggests that public schools can use affirmative action only as a last resort for creating a diverse student body, and raises the prospect that colleges will face a tougher burden of justifying them in the future.

But the justices stopped short of issuing a broader decision either fully cementing or eliminating schools' ability to take account of an applicant's race.

Kennedy wrote that public universities could adopt affirmative action plans only if they can demonstrate that "no workable race-neutral alternatives would produce the benefits of educational diversity."

The decision came in a closely watched challenge to the University of Texas at Austin's admissions policy that is based, in part, on applicants' race. But the justices declined to decide whether the university's program met that tough new standard.

Instead, they said that a lower federal court had acted too deferentially by, in essence, taking the university's word for the fact that such preferences were necessary. They instructed the lower court to hear the case again, and this time to require the university to prove that it had no other way to assemble a diverse student body.

"Strict scrutiny does not permit a court to accept a school's assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice," Kennedy wrote. "The university must prove that the means chosen by the university to attain diversity are narrowly tailored to that goal."

Kennedy was joined by the court's conservative justice and two of its liberals, Justices Stephen Breyer and Sonia Sotomayor. Justice Elena Kagan did not participate in the case.

Justice Ruth Bader Ginsburg wrote a four-page dissent, saying the lower court already had enough evidence. Even the university's purportedly race-neutral method of accepting the top 10% of students from all high schools uses race as a factor, she said, because of segregated neighborhoods.

"Only an ostrich could regard the supposedly neutral alternatives as race-unconscious," she said. "It is race consciousness, not blindness to race, that drives such plans."

Why it took more than eight months to issue what was a fairly short, 13-page decision remained a mystery Monday, raising images of the justices pushing and pulling Kennedy, the court's perennial swing vote. In the end, the ruling was unremarkable in its likely effect, keeping the court in between proponents and opponents of racial preferences.

NEXT STEP UP TO LOWER COURTS, SCHOOLS

How the decision will play out remains to be seen, and could depend on how well colleges are able to justify their policies to lower courts. The decision left in place -- at least for now -- the University of Texas' affirmative action plan.

Advocates on both sides of the often-fraught debate over the use of race in higher education said they saw reasons for optimism, even if none of them got precisely what they wanted from the court.

"It's extremely disappointing that the Supreme Court did not affirm the constitutionality of the University of Texas affirmative action plan," said Barbara Arnwine, president of the Lawyers' Committee for Civil Rights Under Law. "But it's not a total loss because for the time being, the University of Texas plan is still in place."

Edward Blum, who was instrumental in bringing the case to the high court as head of the Project on Fair Representation, said the decision almost certainly spells the end of affirmative action at the University of Texas at Austin and other schools.

"The Supreme Court has established exceptionally high hurdles for the University of Texas and other universities and colleges to overcome if they intend to continue using race preferences in their admissions policies," he said. "It is unlikely that most institutions will be able to overcome these hurdles."

Abigail Fisher, the woman who challenged Texas' plan, said in a statement, "I am grateful to the justices for moving the nation closer to the day when a student's race isn't used at all in college admissions."

A decision calling into question the continued use of race in college admissions had been widely anticipated in light of the court's ruling in 2003 narrowly upholding the University of Michigan's use of racial preferences. At that time, Justice Sandra Day O'Connor said such programs should be obsolete within 25 years; O'Connor, who has since left the court, was on hand when Kennedy announced Monday's decision.

Two justices, Clarence Thomas and Antonin Scalia, said they were prepared to declare affirmative action unconstitutional. Thomas, the court's lone African American, wrote in a separate opinion that in his view, "use of race in higher education admissions decisions is categorically prohibited." He said admissions policies that help blacks can work against them by placing them at universities where they cannot succeed, so that "the university's racial tinkering harms the very people it claims to be helping."

But none of the other justices seemed ready to adopt that view.

ABBY FISHER'S DENIAL TRIGGERED LAWSUIT

Denied admission to the University of Texas in 2008, Fisher claimed her only fault was being white. "I didn't take this sitting down," she said before oral arguments last October.

"There were people in my class with lower grades who weren't in all the activities I was in who were being accepted into UT, and the only other difference between us was the color of our skin," she said in a video posted by the Project on Fair Representation, a conservative group that solicited her case. "For an institution of higher learning to act this way makes no sense to me."

The university's policy was to accept the top 10% of students from each Texas high school, which because of housing patterns produced a relatively diverse class. It then filled out its freshman class by assessing a number of factors including race – a system it said was devoid of quotas or numerical targets but was designed to achieve what it called "critical mass."

The school — backed by others that use affirmative action programs to increase the percentage of minorities gaining admission — argued that a diverse student body contributes to a well-rounded educational experience for all.

It was supported by 73 "friend of the court" briefs filed by a broad array of universities, student groups and athletics coaches, as well as federal, state and local government officials, business executives and retired military leaders. They argued that diversity in education is needed to assure a steady stream of qualified minority applicants for public service, private enterprise and the armed forces.

Though the court upheld the University of Michigan law school's affirmative action program in 2003, it struck down the undergraduate school's program and cautioned that the days of racial preferences should be numbered. It has since accepted for its next term the state of Michigan's defense of its constitutional amendment barring racial preferences in education, employment and contracting.

Since the 2003 decision, the court has taken a turn to the right, thanks to Justice Samuel Alito replacing O'Connor. By the time the Texas case was argued in October, five justices were on record opposing racial preferences.

For that reason, college administrators and civil rights groups feared that the court could issue a sweeping declaration against such preferences affecting not only public universities but possibly private schools, such as Harvard and Yale, that receive federal funds.

Still, Monday's decision reaffirmed that educational diversity remains a compelling government interest, freeing public schools to use otherwise impermissible racial classifications.

"While the decision requires the university to jump through additional hoops to demonstrate that their methods for creating diversity are appropriate, it does reaffirm diversity as a compelling interest," said Neera Tanden, president of the liberal Center for American Progress.

ROOTS IN 1950 INTEGRATION CASE

The case hearkened back to 1950, when Heman Sweatt sued the university after being denied admission because he was black. As his attorney, Sweatt chose Thurgood Marshall, who would go on to become the high court's first black justice. He won the case, marking the first time the court had ordered a black student admitted to an all-white institution.

Since then, colleges and universities have become more integrated. In Grutter v. Bollinger, the court's 5-4 decision upholding the Michigan law school's limited use of affirmative action, O'Connor predicted, "The court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

That case wasn't a slam dunk for the civil rights movement. At the same time, the court ruled 6-3 against the undergraduate school's more numerical system of racial preferences. And O'Connor's decision upholding the law school's racial preferences included a dissent from Kennedy, now the swing vote on the court.

"Preferment by race, when resorted to by the state, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality," Kennedy said then.

Four years later, in a decision that barred voluntary integration programs in the Seattle and Louisville public schools, Chief Justice John Roberts issued one of his most oft-quoted lines: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Two members of the court were being watched closely in this case: Justice Thomas, the lone black justice, who has written that his Yale Law School degree was devalued by racial preferences; and Justice Sonia Sotomayor, the lone Hispanic, whose recent book, My Beloved World, credits affirmative action for giving her access to Princeton and Yale.

In the end, the ruling was so narrow that both Thomas and Sotomayor signed on.

Kagan recused herself from the case, presumably because she was involved with it during her tenure as solicitor general at the Justice Department in 2009-10.

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