The Washington Post

Supreme Court sends Texas affirmative action plan back for further review

With a 7-1 vote, the Supreme Court told a lower court to carefully review the University of Texas’s race-conscious admissions plan. Bob Barnes explains that and other news out of the court Monday. (The Fold/The Washington Post)

The Supreme Court brokered a compromise on affirmative action in college admissions Monday, telling courts to look more closely at the justifications for such programs but keeping alive for now the use of race to achieve diversity.

The court voted 7 to 1 to send the University of Texas’s race-conscious admissions plan back for further judicial view and told the lower court to apply the kind of rigorous evaluation that must accompany any government action that considers race.

“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.

The court will issue decisions Tuesday in what probably will be the court’s final week of the term. Decisions on the continued viability of a key section of the Voting Rights Act and two important cases about same-sex marriage remain.

The University of Texas at Austin has a unique system. It admits about 75 percent of its freshmen based on their graduation rankings from Texas high schools. Because many of the state’s high schools are dominated by one race or ethnicity, that has created a diverse applicant pool.

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.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.

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