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Supreme Court upholds University of Texas affirmative-action admissions

On Thursday, June 23, 2016 the U.S. Supreme Court voted, 4-3, to uphold an affirmative action ruling in the Fisher v. UT Austin case. It's a surprising win for affirmative action advocates. Here's what you need to know. (Video: Monica Akhtar, Gillian Brockell/The Washington Post)

The Supreme Court on Thursday reaffirmed that the value of creating a diverse student body allows university officials to consider race in making admission decisions, upholding a University of Texas plan that has been the subject of years of legal battles.

The 4-to-3 decision was a surprising win for advocates of affirmative action, who had entered the term simply hoping the court would not use the case to ban all uses of affirmative action.

Instead, the majority opinion written by Justice Anthony M. Kennedy reiterated previous high-court rulings that diversity justifies some intrusion on the Constitution’s guarantee of equal protection, which generally forbids the government from making decisions based on race.

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"A university is in large part defined by those 'intangible qualities which are incapable of objective measurement but which make for greatness,' " Kennedy wrote in an opinion joined by the court's liberals.

“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,” wrote Kennedy, who had never before voted in favor of a race-conscious plan. “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.”

Justin Driver, a law professor at the University of Chicago who closely followed the case during his previous tenure in Austin, said the decision “signals that affirmative action is safe not only at the University of Texas but around the country.”

He said UT’s policy had been perceived by legal experts to be especially vulnerable to challenges because it augmented a unique admissions plan — guaranteeing acceptance to the top students in each Texas high school — that on its own ensures diversity.

“If even this program survives scrutiny, it is extraordinarily difficult to believe that the court will be prepared to strike down any university’s affirmative-action program anytime soon,” Driver said.

Marisa Bono, a lawyer at the Mexican American Legal Defense and Education Fund, described the decision as a “green light” for colleges to proceed with race-conscious admissions policies.

“Today’s decision truly represents a clear and resounding message that UT and other institutions of higher education may consider race in the admissions process as long as they can show a very limited use of race that is narrowly tailored to achieve diversity,” she said.

Kennedy said UT’s approach made race a “factor of a factor of a factor” in acceptance decisions affecting those beyond the “Top 10” program. He accepted the university’s argument that the approach was needed to ensure a diverse student body that benefited all students.

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When the court considered the case in 2013, Kennedy wrote the opinion that sent it back to lower courts for a closer examination. That decision’s admonition that the program be evaluated under the judiciary’s highest scrutiny made it seem that a majority of the court was skeptical the admissions plan would survive.

“Something strange has happened since our prior decision in this case,” is how Justice Samuel A. Alito Jr. on Thursday began his 51-page dissent, more than twice as long as Kennedy’s opinion.

He characterized the UT policy as “affirmative action gone wild” and read a summary of his opinion from the bench to emphasize that he thought Kennedy’s opinion “remarkable — and remarkably wrong.”

“The majority’s uncritical deference to UT’s self-serving claims blatantly contradicts our decision in the prior iteration of this very case,” wrote Alito, who was joined by Chief Justice John G. Roberts Jr. and Justice Clarence Thomas.

Kennedy was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor. Justice Elena Kagan recused herself because she had worked on the issue as President Obama’s solicitor general.

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Obama praised the ruling on affirmative action.

“The Supreme Court upheld the basic notion that diversity is an important value in our society and that this country should provide a high-quality education to all our young people, regardless of their background,” he said. “We are not a country that guarantees equal outcomes, but we do strive to provide an equal shot to everybody.”

Opponents of affirmative action looked for a silver lining, and they pointed to Kennedy’s warning that all university plans must be continually reevaluated and that not all might be found constitutional.

Roger B. Clegg, president of the Center for Equal Opportunity, said the decision was a narrow one. “It leaves plenty of room for future challenges to racial preference policies at other schools,” he said in a statement. “Those challenges will continue.”

The case was brought in 2008 by Abigail Fisher, a white woman who was denied admission to UT. Her lawsuit was organized and funded by a conservative legal organization that opposes racial preferences in government and brought the challenge that resulted in the justices striking a key provision of the Voting Rights Act in 2013.

“I am 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,” Fisher said in a statement. “I hope that the nation will one day move beyond affirmative action.”

Edward Blum, director of the group that supported Fisher, the Project on Fair Representation, called the decision a “sad step backward for the original, colorblind principles to our civil rights laws.”

Blum is sponsoring challenges to admissions policies at Harvard University and the University of North Carolina and said the court’s ruling Thursday was narrow enough that the other lawsuits could still be successful.

But civil rights leaders disagreed. The ruling “in many way closes off many of the doors that some had hoped were open, by so strongly and powerfully reaffirming” the value of diversity to universities, said Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund

Several states — including large ones such as California, Florida and Michigan — already forbid the use of race in admitting students to their universities.

The University of Texas has a unique system. The top students in each Texas high school are guaranteed admission to the flagship campus in Austin. Because many high schools are made up overwhelmingly of Hispanic or African American students, that ensures a certain amount of diversity in the freshman class.

But university administrators said it is important to be able to at least consider race in admitting the rest of the freshman class, to ensure the kind of diversity that they said is crucial to creating a learning environment that can benefit all students.

Kennedy systematically knocked down Fisher’s arguments: that the university had not articulated its diversity goals, that the Top 10 plan was enough to ensure diversity, that it could alter the weight given to academic and socioeconomic factors.

“This proposal ignores the fact that the University tried, and failed, to increase diversity through enhanced consideration of socioeconomic and other factors,” Kennedy wrote. “And it further ignores this Court’s precedent making clear that the Equal Protection Clause does not force universities to choose between a diverse student body and a reputation for academic excellence.”

What made Kennedy's Thursday opinion so significant is that he was a dissenter in the 2003 precedent, Grutter v. Bollinger, to which he was referring.

Alito said the court majority gave too much deference to UT officials, who had provided only a “vaguely defined objective” for the school’s policy. Just as the court does not defer to government officials who say, “Trust us,” Alito said from the bench, college officials “are not angels whose actions are above judicial scrutiny.”

He went on to describe what he called “glaring defects” in the university’s arguments for considering race in admissions. Alito said the university “never came close” to complying with the court’s orders, issued after its first review of the school’s policies, that it show that the use of race in admissions decisions is necessary.

He criticized the university’s efforts to expand diversity on campus beyond the program that guarantees admission for top students. Alito sharply questioned the university’s efforts to admit minorities from more privileged backgrounds and to increase the number of African American and Latino students on campus to counteract feelings of isolation and loneliness.

“This is affirmative action gone berserk,” he said, “based on offensive and unsupported stereotypes.”

With Kagan’s recusal, the court considered the case with only seven justices.

Justice Antonin Scalia, who died four months ago, raised a storm of controversy with his comments during oral argument of the case in December. Scalia had openly questioned the benefit of trying to include more minority students at the nation’s selective universities.

“Really competent blacks” would win admission without special considerations, he said. “There are those who contend that it does not benefit African Americans to — to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less — a slower-track school where they do well.”

Some academics call such a theory “mismatch,” and Scalia noted a friend-of-the-court brief in the case that said most black scientists do not come from the most highly selective schools.

Neither Kennedy’s nor Alito’s opinion ventured into the mismatch controversy.

Alito emphasized in his dissent that “what is not at stake” is whether UT or any university may adopt an admissions plan that results in a student body “with a broad representation of students from all racial and ethnic groups.” But he said that UT faced a “heavy burden” in justifying its specific program and that the majority accepted the university’s explanation even though it “relies on a series of unsupported and noxious racial assumptions.”

Thomas filed a short dissent only for himself to repeat his previously stated view that a state’s use of race in admissions is “categorically prohibited by the Constitution.” That doesn’t change in the face of a “faddish theory that racial discrimination may produce ‘educational benefits,’ ” he wrote.

Emma Brown and Ann Marimow contributed to this report.