June 24, 2018
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Supreme Court sends Texas affirmative action plan back for further review

By Robert Barnes, The Washington Post

The Supreme Court brokered a compromise on affirmative action in college admissions Monday, telling courts to look more closely at the justifications for such programs but keeping alive for now the use of race to achieve diversity.

The court voted 7 to 1 to send the University of Texas’s race-conscious admissions plan back for further judicial view, and told the lower court to apply strict scrutiny, the toughest judicial evaluation of whether a government’s action is allowed.

“A university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that ‘encompasses a … broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element,’” wrote Justice Anthony Kennedy.

The decision could spawn challenges of race-conscious admissions decisions elsewhere, but stopped short of ruling out the use of race, as affirmative action opponents had urged.

The ruling likely came of sharp disagreements among the justices that are absent from Kennedy’s 13-page opinion. The case was argued in October.

Justice Ruth Bader Ginsburg was the only dissenter, saying the lower courts already had performed the tasks the Supreme Court set out. Justice Clarence Thomas continued to note his belief that affirmative action programs are unconstitutional.

The fight over diversity at the University of Texas was one of the most controversial of the term, with liberals defending a university’s right to assemble racially diverse student bodies and conservatives worrying about the constitutional rights of those who are denied admission because of their race.

The court last ruled on affirmative action in university admissions in 2003, when a divided court in Grutter v. Bollinger approved a limited use of race by the University of Michigan Law School to achieve a “critical mass” of diversity that benefits all students.

The University of Texas at Austin has a unique system. It admits about 75 percent of its freshmen based on their graduation rankings from Texas high schools. Since many of the state’s high schools are dominated by one race or ethnicity, this has created a diverse applicant pool.

For the remaining slots, it uses a “holistic” evaluation of applicants that includes race as one of many factors.

A white applicant, Abigail Fisher, did not make the cut-off for automatic admission, and said the attempts to boost the number of African American and Hispanic students cost her a spot in the freshman class of 2008. She subsequently attended and graduated from Louisiana State University.

The court since 1978 has recognized that promoting diversity on the nation’s campuses allows universities to give some consideration to an applicant’s race, which normally would be unconstitutional.

But the court’s composition has changed considerably, even since the 2003 decision. The 5 to 4 Grutter decision was written by Justice Sandra Day O’Connor, who has been replaced on the court by Justice Samuel Alito. Alito has proved to be a fierce opponent of race-specific government policies.

At oral arguments, Fisher’s attorney, Bert Rein, said UT had become one of the nation’s most diverse universities because of its policy of admitting any applicant from the top 10 percent of a Texas high school.

In filling the rest of its class, “race should have been a last resort,” Rein said. Instead, “it was a first resort.”

Washington lawyer Gregory Garre , defending UT’s plan, said the university adhered to the court’s Grutter guidelines, using race only in a limited way to build a more diverse student body. He also said Fisher should not be able to bring the suit because she did not have the qualifications to make it into the 2008 freshman class, regardless of her race.

Solicitor General Donald Verrilli told the court that the Obama administration believes the court should uphold UT’s plan and that making sure the nation’s top universities produce diverse leaders is a “vital interest” of the United States.

Fisher v. University of Texas was decided by only eight justices because Justice Elena Kagan recused herself. She had worked on the case when she was President Barack Obama’s solicitor general.

Reaction to the ruling reflected the tentative nature of the compromise. Supporters of affirmative action in higher education pointed out that the court kept the idea alive.

The decision leaves intact Supreme Court precedent that ” universities can adopt affirmative action plans when necessary, and proponents of diversity in higher education can take some comfort in that,” said Jon Greenbaum, chief counsel of the Lawyers Committee for Civil Rights.

Edward Blum, who engineered the challenge to the UT plan, said it showed that the end is near.

“The Supreme Court has established exceptionally high hurdles for the University of Texas and other universities and colleges to overcome if they intend to continue using race preferences in their admissions policies,” Blum said in a statement. “It is unlikely that most institutions will be able to overcome these hurdles.”

The court said it would issue further decisions Tuesday and Wednesday.


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