U.S. justices send affirmative action case back to lower court

Students calling for diversity protest outside the U.S. Supreme Court in Washington, in this October 10, 2012 file photo.  Credit: Reuters
Students calling for diversity protest outside the U.S. Supreme Court in Washington, in this October 10, 2012 file photo.
Credit: Reuters

The U.S. Supreme Court on Monday avoided a major ruling in a closely watched racial case on the affirmative action admissions policy at the University of Texas at Austin by sending the case back to a lower court.

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 Texas policy violated the U.S. Constitution’s guarantee of equal protection.

In doing so, Justice Anthony Kennedy made it clear that the program is not on solid legal ground and could still be overturned.

When the case returns to the 5th U.S. Circuit Court of Appeals in New Orleans, 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 means 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 in a ruling 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 Grutter v. Bollinger, which upheld the University of Michigan Law School’s affirmative action program.

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 falling foul of restrictions on affirmative action.

The case against the university was led by Abigail Fisher, a white suburban Houston woman who said that her race kept her from being admitted and that the top 10-percent rule was enough to improve diversity.

Texas countered that the rule did not result in the admission of enough minorities.

Fisher later graduated from Louisiana State University.

The University of Texas and its supporters contended that universities must have the flexibility to consider race to ensure diversity. Opponents said it is time to eliminate racial preferences, which they say are unconstitutional.

Justice Elena 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 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.

The case is Fisher v. University of Texas at Austin et al, U.S. Supreme Court, No. 11-345.


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