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Supreme Court Returns Affirmative Action Case to Lower Court

By Mark Walsh — June 24, 2013 6 min read
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In a surprise outcome, the U.S. Supreme Court ruled 7-1 on Monday that a lower court failed to properly apply the proper legal standard to the race-conscious admissions program at the University of Texas at Austin.

The court threw out a ruling by the U.S. Court of Appeals for the 5th Circuit, in New Orleans, that upheld the flagship UT campus’s consideration of race in undergraduate admissions.

Justice Anthony M. Kennedy said the lower court had failed to hold the university to the demanding burden of “strict scrutiny” as articulated in the Supreme Court’s landmark decisions on affirmative action in education.

The 5th Circuit presumed that the university had acted it good faith and thus showed deference to the school, a standard that was at odds with the requirement under the 2003 case of Grutter v. Bollinger that “all racial classifcations imposed by government must be analyzed by a reviewing court under strict scrutiny.”

“Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice,” Justice Kennedy wrote for the court in Fisher v. University of Texas at Austin (Case No. 11-345).

Under strict scrutiny, a government racial classification must meet a compelling governmental interest and be narrowly tailored to achieve that interest.

His opinion was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, Stephen G. Breyer, Samuel A. Alito Jr., and Sonia Sotomayor. Justice Elena Kagan did not participate in the case because she had presumably worked on it while she was U.S. solicitor general.

Justice Ruth Bader Ginsburg read part of her lone dissent from the bench.

“In my view, the courts below adhered to this court’s pathmarking decisions and there is no need for a second look,” she said. “Like so many educational institutions across the nation, the University of Texas modeled its admissions plan after the law-school policy approved in Grutter v. Bollinger and the Harvard plan referenced as exemplary in Justice [Lewis F.] Powell’s opinion in Regents of the University of California v. Bakke.”

Justice Kennedy cited language from the Grutter opinion by then-Justice Sandra Day O’Connor, who was in the courtroom on Monday.

“Strict scrutiny must not be ‘strict in theory, but fatal in fact,’” Kennedy said, in reference to language O’Connor used in Grutter. “But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact.”

“In order for judicial review to be meaningful,” Kennedy continued, “a university must make a showing that its plan is narrowly tailored to achieve the only interest that this court has approved in this context: the benefits of a student body diversity that encompasses a broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”

The case involves Abigail Fisher, a white applicant from Sugar Land, Texas, who was denied admission to the University of Texas at Austin in 2008 under the university’s “holistic review” program.

In a statement after the court’s decision on Monday, Fisher said: “I am grateful to the justices for moving the nation closer to the day when a student’s race isn’t used at all in college admissions.”

The university takes race into account for the roughly one-quarter of places in UT-Austin’s entering freshman class not filled by the “Top Ten” plan—the Texas law that guarantees admission to high school students who finish in the top 10 percent of their graduating classes.

Lawyers for Ms. Fisher argued that except for the consideration of race, she would have been admitted. They called for the race-conscious Texas program to be struck down under the 14th Amendment’s equal-protection clause because it fails the requirement for a narrowly tailored race-conscious program set forth in the Supreme Court’s 2003 decision in Grutter.

That 5-4 decision involved the University of Michigan law school, and the majority opinion by then-Justice Sandra Day O’Connor expressed a desire for all use of affirmative action in education to end within 25 years.

In a statement by the Project on Fair Representation, the group that backed Fisher’s suit, project founder Edward Blum said, “The Supreme Court has established exceptionally high hurdles for the Univ. of Texas and other universities and colleges to overcome if they intend to continue using race preferences in their admissions policies. It is unlikely that most institutions will be able to overcome these hurdles. This opinion will compel the Fifth Circuit to strike down UT’s current use of race and ethnicity.”

The University of Texas argued that its selectivity has been hindered by the rigidity of the Top Ten plan, and that its use of race is designed to bolster racial diversity in a broad sense, including within minority groups, such as by attracting better-credentialed black and Hispanic students than under the automatic plan.

Black and Hispanic students admitted through the holistic program, such as “the African-American or Hispanic child of successful professionals in Dallas,” have “great potential for serving as a ‘bridge’ in promoting cross-racial understanding, as well as in breaking down racial stereotypes,” the university said in its main Supreme Court brief.

Reacting to the Supreme Court’s decision on Monday, UT-Austin President Bill Powers said he was encouraged by the ruling and that the university would continue to defend its policy.

“We remain committed to assembling a student body at the University of Texas at Austin that provides the educational benefits of diversity on campus while respecting the rights of all students and acting within the constitutional framework established by the court,” Powers said in a prepared statement.

Many K-12 groups, including the National School Boards Association and Teach For America, along with the higher education community in general, took positions in support of the university.

A joint brief by the College Board, the NSBA, and several other K-12 groups argued that racial diversity “has emerged as central to our nation’s overarching goals associated with educational excellence.”

Francisco Negron, the general counsel of the NSBA, said Monday that he and other K-12 advocates we’re heartened by the decision.

“I think there is some good law here,” said Negron. “Justice Kennedy is coming right out and saying Grutter is still good law and that courts have to be deferential about schools using diversity.”

He said Kennedy’s language on narrow tailoring was in line with his concurrence in the 2007 decision in Parents Involved in Community Schools v. Seattle School District, when the high court sharply curtailed the permissible uses of race in K-12 education.

“He’s saying race neutrality should be part of the strict scrutiny analyis,” which is what Kennedy stressed in the Seattle concurrence, Negron said.

A much smaller number of organizations, such as the Asian American Legal Foundation and the Pacific Legal Foundation, filed briefs backing Ms. Fisher.

Photo: Abigail Fisher, who sued the University of Texas when she was not offered a spot at the university’s flagship Austin campus in 2008, is followed by Edward Blum of the Project on Fair Representation, after a news conference at the American Enterprise Institute in Washington on Monday. The U.S. Supreme Court ruling on affirmative action in higher education will have “no impact” on the University of Texas’ admissions policy, school president Bill Powers said Monday, noting UT will continue to use race as a factor in some cases. (Charles Dharapak/AP)

A version of this news article first appeared in The School Law Blog.