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Supreme Court Orders Lower Court to Reconsider Affirmative Action Case Justices Step Up Scrutiny of Race in College Entry
(about 7 hours later)
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. WASHINGTON — Courts must take a skeptical look at affirmative-action programs at public colleges and universities, the Supreme Court ruled Monday, in a decision that is likely to set off a wave of challenges to race-conscious admissions policies nationwide.
The brief decision, issued eight months after the case was argued, was almost surely the product of intense negotation among the justices. The compromise they reached was at least a reprieve for affirmative action in higher education, and civil rights groups that had feared for the future of race-conscious admission programs breathed a sigh of relief. The 7-to-1 decision avoided giving a direct answer about the constitutionality of the program, used by the University of Texas at Austin, that was before the court.
For now, the Texas program and other affirmative action programs can continue without changes. The program will continue for now, but the justices ordered an appeals court to reconsider the case under a demanding standard that appears to jeopardize the 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. The ruling was simultaneously modest and significant, and its recalibration of how courts review the constitutionality of race-conscious decisions by the government will reverberate beyond higher education.
That requirement could endanger the Texas program when it is reconsidered by the federal appeals court in New Orleans. The 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. The brief decision, issued eight months after the case was argued, was almost surely the product of intense negotiations among the justices.
“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 compromise that the majority reached was at least a reprieve for affirmative action in higher education, and civil rights groups that had feared for the future of race-conscious admission programs were relieved. Conservatives and other opponents of the current version of affirmative action vowed to use the court’s ruling as a road map to bring future cases.
Justice Anthony M. Kennedy wrote the majority opinion, joined by the four members of the court’s conservative wing — Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — and two of its liberals, Justices Stephen G. Breyer and Sonia Sotomayor.
Only Justice Ruth Bader Ginsburg dissented, writing that lower courts were correct to uphold the Texas program. Justice Elena Kagan disqualified herself from the case, presumably because she had worked on it as solicitor general in the Obama administration.
The decision did not disturb the Supreme Court’s general approach to affirmative action in admissions decisions, saying that educational diversity is an interest sufficient to overcome the general ban on racial classifications by the government. But the court added that public institutions must have good reasons for the particular methods they use to achieve that goal.
Colleges and universities, Justice Kennedy wrote for the majority, must demonstrate that “available, workable race-neutral alternatives do not suffice” before taking account of race in admissions decisions.
That requirement could endanger the Texas program when it is reconsidered by the United States Court of Appeals for the Fifth Circuit, in New Orleans. The university’s program admits most undergraduates under race-neutral criteria, accepting all Texas students who graduate near the top of their high school classes. But the university also uses a race-conscious system to choose the remaining students.
Courts reviewing government programs that make distinctions based on race subject them to a form of judicial review known as “strict scrutiny,” requiring the government to identify an important goal and a close fit between means and ends. Justice Kennedy’s opinion focused on and tightened the second part of the test.
“Strict scrutiny,” Justice Kennedy wrote, “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.”
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.”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. Justice Ginsburg, who announced her dissent from the bench, said the race-neutral part of the Texas program worked only because of “de facto racial segregation in Texas’ neighborhoods and schools.”
The remaining justices, including ones friendly and hostile to affirmative action, agreed on a middle ground, though Justices Antonin Scalia and Clarence Thomas each issued dissents indicating that they would vote to strike down race-conscious admission plans in a future case.
Justice Elena Kagan disqualified herself from the case, presumably because she had worked on it as solicitor general.
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 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.
In a statement issued Monday, Ms. Fisher said 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.”In a statement issued Monday, Ms. Fisher said 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.”
William C. Powers Jr., the university’s president, said in a statement that the university would continue to use its program and defend it in court. “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,” he said.William C. Powers Jr., the university’s president, said in a statement that the university would continue to use its program and defend it in court. “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,” he said.
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 admissions system that 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. Many colleges and universities admit all of their students on such “holistic” grounds. The question in the case decided Monday was whether Texas was entitled to supplement its race-neutral Top 10 program with a race-conscious holistic one.
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 should not supplement it with a race-conscious one. Monday’s decision let stand, for now, a longstanding but fragile societal compromise, one that forbids quotas but allows using race as one factor among many in the 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 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 — “25 years from now” — when “the use of racial preferences will no longer be necessary” in admissions decisions to foster educational diversity.
Justice O’Connor, who retired in 2006, was in the courtroom on Monday, as was Justice John Paul Stevens, who retired in 2010.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.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 Kennedy, in describing the additional work that courts must now do, gave a new twist to an adage. He wrote, quoting earlier decisions, that “strict scrutiny must not be ‘strict in theory, but fatal in fact.’ ”
“But the opposite is also true,” he continued. “Strict scrutiny must not be strict in theory but feeble in fact.”

This article has been revised to reflect the following correction:

This article has been revised to reflect the following correction:

Correction: June 24, 2013Correction: 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.

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.