For the remaining slots, it uses a “holistic” evaluation of applicants that includes race as one of many factors.
A white applicant, Abigail Fisher, did not make the cutoff for automatic admission, and said the attempts to boost the number of African American and Hispanic students cost her a spot in the freshman class of 2008. She subsequently graduated from Louisiana State University.
The court since 1978 has recognized that promoting diversity on the nation’s campuses allows universities to give some consideration to an applicant’s race, which normally would be unconstitutional.
In Grutter, a divided court approved in 2003 a limited use of race by the University of Michigan Law School to achieve a “critical mass” of diversity that benefits all students.
But the court’s composition has changed considerably, even since the 2003 decision. The 5-4 Grutter decision was written by Justice Sandra Day O’Connor, who has been replaced by Justice Samuel A. Alito Jr., who opposes race-specific government policies.
O’Connor was in the courtroom Monday to see her handiwork emerge largely unscathed, as was retired justice John Paul Stevens, who voted with the majority in that case.
The Obama administration supported Texas’s plan, saying that making sure the nation’s top universities produce diverse leaders is a “vital interest” of the United States. And it was supported by an array of corporations, former military leaders and business executives.
Fisher v. University of Texas was decided by only eight justices because Justice Elena Kagan recused herself. She had worked on the case when she was President Obama’s solicitor general.
Reaction to the ruling reflected the tentative nature of the compromise. Supporters of affirmative action in higher education pointed out that the court kept the idea alive.
Those who oppose race-conscious plans said the decision practically encourages a challenge.
Kennedy’s opinion is filled with reminders to judges about the proof required to uphold a program that considers race.
But Ginsburg said universities “need not blind themselves to the still lingering, every day evident, effects of centuries of law-sanctioned inequality.” Programs that “candidly disclose their consideration of race are preferable to those that conceal or obscure what drives them,” she said in a statement from the bench.
Thomas wrote a 20-page concurring opinion to elaborate on his oft-stated view that to consider race for diversity purposes is no more lawful than to segregate the races, and of no more value to minorities.
“The worst forms of racial discrimination in this nation have always been accompanied by straight-faced representations that discrimination helped minorities,” he wrote.