U.S. Justices Send Key Affirmative Action Case Back to Lower Court

Court watchers and reporters wait outside the U.S. Supreme Court building. REUTERS/Jonathan Ernst
• June 24, 2013 1:47 pm


By Lawrence Hurley

WASHINGTON (Reuters) – Supporters of affirmative action breathed a sigh of relief on Monday as the U.S. Supreme Court avoided a major ruling in a closely watched case on the racial admissions policy at the University of Texas by sending the case back to a lower court.

The case before the justices was brought by Abigail Fisher, a white suburban Houston student who asserted she was wrongly rejected by the University of Texas at Austin while minority students with similar grades and test scores were admitted thanks to the admissions policy.

The court, on a 7-1 vote with Justice Elena Kagan not taking part, said an appeals court did not apply the correct standard in deciding whether the university's policy violated the U.S. Constitution's guarantee of equal protection.

Many court-watchers, basing their predictions on October's oral arguments, had thought the program was doomed and that the court might cut back on the use of affirmative action – admissions preferences that benefit minorities in order to diversify student enrollment – in broader terms.

In his majority opinion, however, Justice Anthony Kennedy did write that the Texas program might not be on solid legal ground and could still be overturned. The 5th U.S. Circuit Court of Appeals in New Orleans must scrutinize the policy even more closely the second time around, including consideration of whether the university could have used a race-neutral alternative, he said.

The university "must make a showing that its plan is narrowly tailored to achieve the only interest that this court has approved in this context," Kennedy wrote.

Under court precedent, that would mean a program that takes into account a broad array of qualifications and characteristics "of which racial or ethnic origin is but a single though important element."The Supreme Court avoided making a decision on whether to overturn a 2003 precedent written by the now-retired Justice Sandra Day O'Connor that let universities use race in admissions as one factor among others that make particular applicants more desirable.

The court's composition has become more conservative since that decision in the case Grutter v. Bollinger, which upheld the University of Michigan Law School's affirmative action program.

"It's a relief," said Jon Greenbaum, chief counsel for the Lawyers' Committee for Civil Rights Under Law, which filed a brief in support of the university in the case. In his view, the Supreme Court has reiterated that "colleges can use affirmative action plans that consider race when it is necessary to achieve diversity."


Liberal Justice Ruth Bader Ginsburg wrote a dissenting opinion defending the University of Texas program. She said it made little sense for the court to effectively uphold the Grutter decision while failing to endorse the Texas program.

She poured cold water on the idea that there are other ways of selecting students without considering race that can improve diversity, asserting: "I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious."

The University of Texas at Austin fills most of its freshman classes by granting automatic admission to in-state students in the top 10 percent of their high school classes. The policy was introduced to improve minority enrollment without running afoul of restrictions on affirmative action.

A year after the 2003 Grutter ruling, the university decided it had leeway to consider race more directly. Now, for the slots not already filled by the top 10 percent, it considers an applicant's race as one of many factors, including extracurricular activities, family background and work experience, as part of a stated aim to improve diversity on campus.

Fisher, who has since graduated from Louisiana State University, said that her race kept her from being admitted and that the top 10-percent rule was enough to improve diversity.

Having won the opportunity to be heard again in the appeals court, Fisher said in a statement that she was "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."

"We're encouraged by the Supreme Court's ruling in this case," Bill Powers, the president of the University of Texas at Austin, said in a statement, adding that school officials believe their policy can survive another round of litigation.

"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.

The University of Texas and its supporters contended that universities must have the flexibility to consider race to ensure diversity. Opponents said it was time to eliminate racial preferences, which they said were invalid under the U.S. Constitution.

Kagan, believed to be a supporter of affirmative action, recused herself from the Fisher case, presumably because she had worked on it as U.S. solicitor general under President Barack Obama.

For decades, dating back at least to the John F. Kennedy administration of the early 1960s, U.S. leaders have struggled with what "affirmative action" should be taken to help blacks and other minorities. In the early years, it was seen as a way to remedy racial prejudice and discrimination. In more recent times, it has been seen as a way to bring diversity to campuses and workplaces.

Since 1978, the Supreme Court has been at the center of disputes over when universities may consider applicants' race. In that year's groundbreaking Bakke decision from a University of California medical school, the justices forbade quotas but said schools could weigh race with other factors.

Published under: Affirmative Action, Supreme Court