“Strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice,” Justice Anthony M. Kennedy wrote.
The decision thus could spawn challenges of race-conscious admissions decisions elsewhere and require university administrators to offer much more than “good faith” guarantees that they know best how to build a diverse student body.
But the ruling, one of the most anticipated of the term, was notable for what it did not do. It did not forbid the consideration of race, significantly alter the court’s prescription of how such programs should operate or even pass judgment on the UT program at issue.
UT President Bill Powers said the court’s decision “will have no impact on admissions decisions we have already made or any immediate impact on our holistic admissions policies.”
Edward Blum, who engineered the challenge of the admissions program, said he was confident that it would not withstand the scrutiny the court has prescribed.
“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,” Blum said in a statement. “It is unlikely that most institutions will be able to overcome these hurdles.”
The ruling is most likely the result of sharp disagreements among the justices that are absent from Kennedy’s 13-page opinion. The case was argued in October, and the eight-month lag in issuing Monday’s decision indicates that some justices may have worked on a much broader ruling, but were unable to find a majority.
In the end, the decision was spare enough to be endorsed both by Justices Sonia Sotomayor and Clarence Thomas, who have opposite views on affirmative action. It was written by Kennedy, who was a dissenter when the court last approved the use of race in admissions, the 2003 decision in Grutter v. Bollinger.
Justice Ruth Bader Ginsburg was the only dissenter Monday, saying the lower courts already had examined the UT program that the decision sets out.
Thomas continued to note his belief that affirmative-action programs are unconstitutional, but noted, as did Justice Antonin Scalia, that the challengers did not ask the court to overturn Grutter.
The fight over diversity at the University of Texas was one of the most controversial of the term, with liberals defending a university’s right to assemble racially diverse student bodies and conservatives worrying about the constitutional rights of those who are denied admission because of their race.