Richard Wolf

USA TODAY

WASHINGTON — A deeply divided Supreme Court upheld the use of racial preferences in admissions at the University of Texas Thursday, giving a surprising vote of confidence to affirmative action policies it had seemed prepared to strike down.

The 4-3 ruling did not endorse all programs designed to attract a diverse student body at colleges and universities. But Justice Anthony Kennedy and the court's more liberal justices said Texas' unique method of singling out some minority students for admission to its flagship campus in Austin was constitutional.

The court previously had upheld the use of race in college admissions in 1978, then again in 2003. But Kennedy, clearly destined to be the deciding vote in the case, had been a consistent opponent of affirmative action.

"Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission," Kennedy wrote. "But still, it remains an enduring challenge to our nation's education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity."

His ruling won the votes of liberal Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Justice Elena Kagan recused herself from the casee, presumably because she was involved as U.S. solicitor general before joining the court in 2010.

Justice Samuel Alito slammed the decision as "affirmative action gone wild" in a 51-page dissent that dwarfed the court's 20-page opinion. He said it allows the university to seek out African-American students with privileged backgrounds over low-income white and Asian students. Chief Justice John Roberts and Justice Clarence Thomas joined his dissent.

"When affirmative action programs were first adopted, it was for the purpose of helping the disadvantaged," Alito wrote. "Now we are told that a program that tends to admit poor and disadvantaged minority students is inadequate because it does not work to the advantage of those who are more fortunate."

The dramatic decision -- more than six months in the making -- was crafted without Justice Antonin Scalia, who died Feb. 13. It was the second time the justices had considered the same case; in 2013, they sent it back to a federal appeals court with instructions to scrutinize more closely the university's program. Even so, that court again sided with the school.

At Texas' flagship university, many fear for diversity

This time, it appeared during oral argument that a majority of justices were prepared to rule that the school's use of race violated the Constitution's equal protection clause by giving minority students a leg up. The university already uses a system in which the top-ranked students from all high schools that use such rankings are admitted, including those in heavily minority neighborhoods. That system, which brings in many African Americans and other minorities, was not challenged.

The case had threatened the use of racial preferences not only at the University of Texas-Austin but across the nation, since the court's ruling could have cast doubt on most affirmative action policies. But in ruling for the school, the court's majority did not absolve all universities of the need to meet a high standard when granting preferences.

"Asserting an interest in the educational benefits of diversity writ large is insufficient," Kennedy said. "A university's goals cannot be elusory or amorphous -- they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them."

The court's conservative justices made clear during oral argument in December that they were impatient with the continued use of affirmative action, more than a decade after a ruling by Justice Sandra Day O'Connor upheld racial preferences but said they should be unnecessary in 25 years.

Supreme Court skeptical of racial preferences in university admissions

Scalia had expressed the most controversial opinions back then. Citing briefs that suggest African Americans may fare better at "less advanced" or "slower-track" schools, he said, "­I don't think it stands to reason that it's a good thing for the University of Texas to admit as many blacks as possible."

The court's liberal justices stood firmly behind the continued use of racial preferences, something the high court upheld in California in 1978 and then in Michigan a quarter century later. They argued that the university at least should be able to prove its case at a fact-finding hearing in Texas before the court considered striking down its program. As it turned out, that will not be necessary.

Kennedy, as usual, was the swing vote. In December, he had complained that, more than two years after his 7-1 opinion sent the case back to a federal appeals court for closer scrutiny, little had changed. But in the end, he said the university had met its obligation to defend its preferences with data.

The case was brought by Abigail Fisher, a white woman denied entry to her state's flagship university in 2008. She ultimately graduated from Louisiana State University but had continued to press her case with the aid of a conservative legal group called the Project on Fair Representation.

“Racial classifications and preferences are one of the most polarizing policies in America today," Edward Blum, the group's president, said Thursday. "As long as universities like the University of Texas continue to treat applicants differently by race and ethnicity, the social fabric that holds us together as a nation will be weakened.”

Speaking from the White House after the ruling, President Obama applauded the justices' ruling.

"We are not a country that guarantees equal outcomes, but we do strive to provide an equal shot to everyone," Obama said. "That's what the Supreme Court upheld today."

But opponents of affirmative action vowed to return with other challenges, including some already filed in lower courts against Harvard University and the University of North Carolina.

"Today's decision is a narrow one and leaves plenty of room for future challenges to racial preference policies at other schools," said Roger Clegg, president of the conservative Center for Equal Opportunity. "Those challenges will continue."

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