Demonstrators gather outside the Supreme Court in Washington, Thursday, June 23. In a major victory for affirmative action, a divided Supreme Court upheld the University of Texas admissions program that takes account of race. | AP Photo Supreme Court upholds college affirmative action program

Race-based admissions policies in higher education dodged another bullet Thursday, with the Supreme Court ruling narrowly to uphold a program that helps minority students get into the University of Texas.

In a 4-3 decision, the court held that Texas' program admitting some students based on consideration of their race is constitutional while cautioning that the university must continue to show that other means of addressing diversity have failed.


"The record here reveals that the university articulated concrete and precise goals (for example) ending stereotypes, promoting 'cross-racial understanding,' preparing students for 'an increasingly diverse workforce and society,' and cultivating leaders with 'legitimacy in the eyes of the citizenry' — that mirror the compelling interest this Court has approved in prior cases," wrote Justice Anthony Kennedy in an opinion joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

But the decision also suggests potential limits, warning the university cannot rely on the policy "without refinement" and that "it is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admission policies."

Only seven justices participated in the decision. Justice Elena Kagan had recused herself for prior work on the case as United States solicitor general and the late Justice Antonin Scalia’s seat remains vacant.

The University of Texas enrolls 75 percent of its class by offering admission to students with top class ranks. It fills the remaining quarter of the class through a "holistic" review in which race is a factor.

The ruling directly affects all public colleges and universities. While private colleges have had more leeway to consider race in admissions, all institutions that accept federal financial aid are subject to Title VI of the federal Civil Rights Act prohibiting racial discrimination, experts said.

Justice Samuel Alito read a withering dissent from the bench, saying the university had not done what the justices had asked when they sent the case back to a lower court in 2013. “The University has still not identified with any degree of specificity the interests that its use of race and ethnicity is supposed to serve,” he wrote in a minority opinion joined by Chief Justice John Roberts Jr. and Justice Clarence Thomas.

Alito said the university “presents no evidence that its admissions officers, in administering the ‘holistic’ component of its plan, make any effort to determine whether an African-American, Hispanic or Asian-American student is likely to enroll in classes in which minority students are underrepresented.”

It would be unfortunate, he said, if other colleges and universities interpreted the court's ruling as a green light to use race more in their admissions decisions.

Only eight states ban race-based admissions for public institutions, and affirmative action policies remain in wide use. Roughly 60 percent of the most selective four-year schools consider race in admissions, an American Council on Education survey found last year.

Two other admissions-related cases filed against Harvard University and the University of North Carolina, both alleging they put Asian-Americans at a disadvantage, were on hold awaiting the Fisher v. University of Texas decision.

Peter McDonough, vice president and general counsel of the American Council on Education, which represents college and university presidents, said the ruling doesn’t appear to change the expectations for colleges and universities.

“The good news about today is that schools that may visit or re-visit what they do and how they do it, in composing a diverse class, have the comfort of knowing that it’s acceptable to continue doing it,” McDonough said. “It’s appropriate for an institution to value the diversity of the campus environment and the student body.”

This was the second go-around for the Fisher case before the nation’s highest court. In 2013, Kennedy wrote the 7-1 opinion that sent jilted University of Texas applicant Abigail Fisher back to an appeals court, which upheld Texas’ admissions policy for a second time. Fisher, a white woman, argued the university’s rejection of her 2008 application violated the Constitution's equal protection clause.

Fisher, who has since graduated from another university, said in a statement that she was “disappointed that the Supreme Court has ruled that students applying to the University of Texas can be treated differently because of their race or ethnicity.”

“I hope that the nation will one day move beyond affirmative action,” she added.

Edward Blum, president of the Project on Fair Representation which provided her counsel, said such preferences are “one of the most polarizing policies in America today.” He called the decision a “sad step backward for the original, color blind principles to our civil rights laws.”

President Barack Obama applauded the ruling, noting, “We are not a country that guarantees equal outcomes, but we do strive to provide an equal shot to everybody, and that’s what was upheld today.”

The ruling was also celebrated by higher education, union and civil rights groups. Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund Inc., said it “sends a strong message to those who continuously seek to undermine racial diversity that the Court will not waver and take our country backwards.”

“We hope that this decision will end the 30-year campaign by anti-affirmative activists to dismantle efforts by colleges and universities to provide access and opportunity to students of all backgrounds,” Ifill added.

Greg Fenves, the president of the University of Texas at Austin, said in a statement that “race continues to matter in American life.”

“We must make sure all of our students are able to excel in the wider world when they leave campus — educating them in an environment as diverse as the United States is one of the most effective ways to do so,” Fenves said.

In the runup to the ruling, all eyes had been on Kennedy, who has served as a swing vote in several race-related cases. While he’s celebrated on the left for his embrace of same-sex marriage, he has expressed skepticism of affirmative action — but also reluctance in recent rulings to end it altogether.

The case was argued against a backdrop of campus racial ferment after high-profile shootings of African-American men in communities such as Ferguson, Mo., Charleston, S.C. and Baltimore.

Campuses across the country have lit up with protests inspired by a Black Lives Matter movement, and Texas officials argued that those discussions underscore the continued need for consideration of race in admissions policies. In one brief, Texas officials described how after the mass shooting at a black church in Charleston, their own students successfully sought to remove a statue of Confederate President Jefferson Davis from an outdoor mall on campus.

Scalia had made headlines during the oral arguments in December when he echoed a conservative critique of affirmative action: that it harms minorities by putting them in environments where they do not perform as well as other students, "as opposed to having them go to a less advanced school, a less slower track school where they do well.”

Roberts also expressed skepticism of the university's practices. During oral arguments, he raised concerns about how the university’s use of race operated and how many extra minority students it allowed into classes. He also wondered aloud if the goal the Supreme Court set in a 2003 case, Grutter v. Bollinger — of winding down such programs within 25 years — had been met.

“Grutter said that we did not expect these sort of programs to be around in 25 years, and that was 12 years ago. Are we going to hit the deadline? Is this going to be done in your view in 12 years?” the chief justice asked.

