Affirmative Action Lives To See Another Day At The Supreme Court

A divided court found that UT Austin's consideration of race in college admissions is constitutional.

WASHINGTON -- In a victory for diversity in higher education, a hamstrung Supreme Court narrowly upheld the affirmative action program at the University of Texas at Austin, effectively allowing the school to keep using race as one of many factors in its admissions process.

Justice Anthony Kennedy -- joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor -- ruled for a 4-3 majority that the university program does not violate the Constitution's guarantee of equal protection of the laws.

"The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement," Kennedy wrote in a 20-page decision. "It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies."

That Kennedy was willing to offer his vote to uphold a college admissions program that partly relies on race to make admissions decisions -- after issuing prior opinions taking a skeptical view of affirmative action policies generally -- indicates that he may be willing to add educational diversity to his concern for dignity in other constitutional areas, such as LGBT rights.

"A university is in large part defined by those intangible qualities which are incapable of objective measurement but which make for greatness," he wrote. "Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission."

The case, Fisher v. University of Texas, was one of the oldest cases left undecided on the court's current docket -- and one of a handful in which the late Justice Antonin Scalia could have been instrumental in the final outcome.

Abigail Fisher, a white student who was denied admission to the University of Texas at Austin, has been at the center of a yearslong constitutional challenge to affirmative action.
Abigail Fisher, a white student who was denied admission to the University of Texas at Austin, has been at the center of a yearslong constitutional challenge to affirmative action.
J. Scott Applewhite/Associated Press

After oral arguments in December, there was little doubt where the court's conservatives stood on the case, with Chief Justice John Roberts pondering out loud when the consideration of race in college admissions "is going to be done."

But the most dramatic moment in the hearing came from Scalia himself, who suggested that affirmative action is not beneficial at all to black students who may not be up to the task of high-performing schools.

“There are those who contend that it does not benefit African-Americans to get them into the University of Texas, where they do not do well,” Scalia said, “as opposed to having them go to a less-advanced school ... a slower-track school where they do well.” His comment drew audible gasps inside the courtroom.

Regardless of how the court might have voted to rule in the case before Scalia's death, it had to scrap its decision and start again, this time with only seven justices, since Justice Elena Kagan had recused herself given her prior role in defending affirmative action as the Obama administration's top appellate lawyer.

This might explain the narrow but meaningful ruling in Fisher -- a sign of compromise in light of the court's current makeup.

At the center of the yearslong battle over the constitutionality of affirmative action was Abigail Fisher, a white woman who sued UT after she was denied admission under the school's Top 10 Percent rule, a "race-neutral" mechanism that automatically grants admission to top-performing high school students across Texas.

“Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”

- Justice Anthony Kennedy

Because Fisher didn't meet that threshold, under which about 75 percent of UT's incoming freshman class is awarded a spot, she challenged the school's "holistic" admissions plan, which selects the remainder of the applicant pool by looking at a snapshot of a student's whole file for admissions determinations.

One of the factors in that snapshot is race, which Fisher -- with the help of conservative legal activist Edward Blum -- claimed was an unconstitutional consideration to make because it deprives her of equal protection under the law.

Kennedy's opinion alluded to this tension between the importance of diverse campuses and treating everyone equally when he observed that "it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity."

Justice Samuel Alito, writing for Chief Justice John Roberts and Justice Clarence Thomas, issued a 51-page dissent that found fault with this reasoning, noting that the case is not about policing universities that want diverse student bodies, but rather their reliance on race to get there.

"What is at stake," Alito wrote, "is whether university administrators may justify systematic racial discrimination simply by asserting that such discrimination is necessary to achieve the educational benefits of diversity, without explaining — much less proving — why the discrimination is needed or how the discriminatory plan is well crafted to serve its objectives."

Writing only for himself, Thomas wrote a one-page dissent that continued to adhere to his hard-line approach -- one that says that affirmative action is "categorically prohibited."

“The Constitution abhors classifications based on race because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all," Thomas wrote.

But President Barack Obama and civil rights group praised the ruling, underscoring that there's still work left to be done to provide a level playing field for all.

"We are not a country that guarantees equal outcomes, but we do strive to provide an equal shot to everybody," Obama said at a White House briefing on Thursday.

"Diversity and equal opportunity have become bedrock American values. At a time when our country is increasingly divided, university campuses provide critical opportunities for students of diverse backgrounds to interact, learn about one another and become informed citizens and leaders," said the NAACP Legal Defense and Education Fund in a statement. "This decision affirms this principle."

Fisher expressed disappointment in Thursday's decision. "I hope that the nation will one day move beyond affirmative action," she said.

Blum, who has also spearheaded lawsuits against affirmative action programs at Harvard and the University of North Carolina at Chapel Hill, said that the Supreme Court's ruling could lead to a weakening of "the social fabric that holds us together as a nation."

"Today’s decision is a sad step backward for the original, colorblind principles to our civil rights laws,” he said in a statement.

This story has been updated with statements from Abigail Fisher and Edward Blum.

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