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Supreme Court Orders Lower Court to Reconsider Affirmative Action Case Supreme Court Orders Lower Court to Reconsider Affirmative Action Case
(35 minutes later)
WASHINGTON — The Supreme Court ruled Monday that lower courts did not apply a sufficiently tough level of scrutiny to the University of Texas’ use of race in admissions decisions, sending the case back to one of those lower courts to be reconsidered. WASHINGTON — The Supreme Court on Monday ordered lower courts to take a fresh look, under a more demanding standard, at the race-conscious admissions policy used to admit students to the University of Texas. The 7-to-1 decision was simultaneously modest and significant, and its recalibration of how courts review the constitutionality of affirmative action programs is likely to give rise to a wave of challenges to admissions programs at colleges and universities nationwide.
The decision will most likely have few immediate implications for affirmative action programs around the country, including in Texas. But it may represent the start of a new wave of challenges to the use of race in admissions decisions. For now, the Texas program and other affirmative action programs can continue without changes.
In a 7-to-1 decision, with Justice Anthony M. Kennedy writing the majority opinion, the court ruled that the lower court did not use a legal standard known as strict scrutiny to assess the university’s program. The decision did not disturb the Supreme Court’s general approach to affirmative action in admissions decisions, saying that educational diversity is a government interest sufficient to overcome the general ban on racial classifications by the government. But the court added that public institutions must have good reasons to use the particular means they use to achieve that goal, which can include different admissions standards for students of different races.
“Strict scrutiny,” the opinion read, “does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice.” That requirement could endanger the Texas program when it is reconsidered by the federal appeals court in New Orleans. The Texas program admits most students under race-neutral criteria, accepting all students in the state who graduate near the top of their high school classes. But the university also uses a race-conscious system as a supplement.
Justice Ruth Bader Ginsburg was the lone dissenter in the case, Fisher v. the University of Texas. “Strict scrutiny,” Justice Anthony M. Kennedy wrote for the majority, “does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice.”
The case arose from a lawsuit filed by a white woman, Abigail Fisher, who said the university had denied her admission based on her race. “The university must prove that the means chosen by the university to attain diversity are narrowly tailored to that goal,” Justice Kennedy continued. “On this point, the university receives no deference.”
The admissions system Ms. Fisher challenged is idiosyncratic. Three-quarters of applicants from Texas are admitted under a program that guarantees admission to the top students in every high school in the state. (Almost everyone calls this the Top 10 program, though the percentage cutoff can vary. Ms. Fisher just missed the cutoff.) Courts reviewing affirmative action programs must, he wrote, “verify that it is necessary for a university to use race to achieve the educational benefits of diversity.” That requires, he said, “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.”
Justice Ruth Bader Ginsburg, who announced her lone dissent from the bench, said the race-neutral part of the Texas program worked only because of “de facto racial segregation in Texas’s neighborhoods and schools.” She said she would have upheld the appeals court decision endorsing the entire admissions program.
The precise practical consequences of the decision, in Texas and around the nation, will take some time to come into focus. The decision, in which most of an often polarized court found a middle ground, was notable for the incremental step it took.
The case, Fisher v. University of Texas, No. 11-345, arose from a lawsuit filed by a white woman, Abigail Fisher, who said the university had denied her admission based on her race.
The admissions system Ms. Fisher challenged is idiosyncratic. Three-quarters of applicants from Texas are admitted under a program that guarantees admission to the top students in every high school in the state. (Almost everyone calls this the Top 10 program, though the percentage cutoff can vary by year. Ms. Fisher just missed the cutoff.)
The remaining Texas students and those from elsewhere are considered under standards that take account of academic achievement and other factors, including race and ethnicity.The remaining Texas students and those from elsewhere are considered under standards that take account of academic achievement and other factors, including race and ethnicity.
The Top 10 program has produced significant racial and ethnic diversity. In recent years, about 25 percent of freshmen who enrolled under the program were Hispanic, and 6 percent were black. Thirty-eight percent of Texans are Hispanic, and 12 percent are black.The Top 10 program has produced significant racial and ethnic diversity. In recent years, about 25 percent of freshmen who enrolled under the program were Hispanic, and 6 percent were black. Thirty-eight percent of Texans are Hispanic, and 12 percent are black.
Ms. Fisher argued that Texas could not have it both ways. Having put in place a race-neutral program to increase minority admissions, she said, Texas may not supplement it with a race-conscious one. Ms. Fisher argued that Texas could not have it both ways. Having put in place a race-neutral program to increase minority admissions, she said, Texas should not supplement it with a race-conscious one.
Texas officials said that the additional effort was needed to make sure that individual classrooms contained a “critical mass” of minority students.Texas officials said that the additional effort was needed to make sure that individual classrooms contained a “critical mass” of minority students.
The court had two earlier major encounters with the issue, University of California v. Bakke, in 1978, and Grutter v. Bollinger, in 2003. The decision Monday effectively endorsed a longstanding but fragile societal compromise, one that forbade quotas but allowed using race as one factor among many in a “holistic” admissions process. That was the essential message of the court’s two earlier major encounters with the issue, University of California v. Bakke, in 1978, and Grutter v. Bollinger, in 2003.
The pursuit of educational diversity, a five-justice majority said in the Grutter case, permits admissions personnel at public universities to do what the Constitution ordinarily forbids government officials to do — to sort people by race.The pursuit of educational diversity, a five-justice majority said in the Grutter case, permits admissions personnel at public universities to do what the Constitution ordinarily forbids government officials to do — to sort people by race.
The opinion, by Justice Sandra Day O’Connor, went on to say that the day would come when “the use of racial preferences will no longer be necessary” in admissions decisions to foster educational diversity. “We expect that 25 years from now,” she added, “the use of racial preferences will no longer be necessary.”The opinion, by Justice Sandra Day O’Connor, went on to say that the day would come when “the use of racial preferences will no longer be necessary” in admissions decisions to foster educational diversity. “We expect that 25 years from now,” she added, “the use of racial preferences will no longer be necessary.”
Justice Elena Kagan disqualified herself from the new case, presumably because she had worked on it as solicitor general. Justice O’Connor, who retired in 2006, was in the courtroom on Monday, as was Justice John Paul Stevens, who retired in 2010.
The new decision’s reasoning applies to all public colleges and universities. Under Title VI of the Civil Rights Act of 1964, which forbids racial discrimination in programs that receive federal money, most private institutions of higher education would seem to be covered as well.
Justice Elena Kagan disqualified herself from the case, presumably because she had worked on it as solicitor general.

This article has been revised to reflect the following correction:

Correction: June 24, 2013

An earlier Web address and page title misstated the Supreme Court’s ruling. As the headline correctly noted, the justices sent the case back to a lower court.