Supreme Court Orders Lower Court to Reconsider Affirmative Action Case
By THE NEW YORK TIMES
Published: June 24, 2013 Comment
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.
Luke Sharrett for The New York Times
Abigail Fisher, who was denied admission to the University of Texas at Austin, said her race was held against her.
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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.
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.
“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.”
Justice Ruth Bader Ginsburg was the lone dissenter in the case, Fisher v. the University of Texas.
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 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.)
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.
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.
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 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.”
Justice Elena Kagan disqualified herself from the new case, presumably because she had worked on it as solicitor general.
