Civil and Human Rights

Court punts on affirmative action

By Sam Baker


The Supreme Court said Monday that race can be used in college admissions — but schools must meet a high bar when defending affirmative action programs.


The ruling amounted to a punt in a high-profile case challenging affirmative action in the University of Texas’s admissions process.

The court declined to rule on Texas’s program and sent the case back to a lower court for new arguments.


The high court’s 7-1 decision will likely do very little to settle the long-running debate over affirmative action. Both sides of the debate saw Monday’s ruling as a partial win.


Justice Anthony Kennedy said in the court’s decision that race can be a factor in college admissions, but the courts should use a more rigorous test when evaluating individual programs.


“I think today’s ruling emphasizes that the university has to show that its use of race is modest, is narrowly tailored to achieving the goal of educational diversity,” said David Gans, civil rights director at the liberal-leaning [Constitutional Accountability Center].


Legal observers had been waiting for the court’s affirmative action ruling for eight months. It was the first case argued in the current term, and the long wait for a ruling had prompted speculation that the justices were having trouble putting together a five-vote majority.


Some court watchers said the nonruling Monday — and the fact that it was a 7-1 decision — seemed like further evidence of a long negotiation.


In a post at the Volokh Conspiracy, a popular legal blog, George Mason University law professor Ilya Somin suggested that two of the court’s liberal justices — Stephen Breyer and Sonia Sotomayor — might have joined the majority opinion in order to limit its scope.


Justice Clarence Thomas, one of the court’s most conservative members, said he would settle for Monday’s outcome but would have been willing to overturn one of the court’s key precedents on affirmative action.


“There is no principled distinction between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits,” Thomas wrote.


Affirmative action supporters had worried that the conservative justices would use the Texas case to roll back past decisions, and were relieved to see that the justices didn’t go that far — at least for now.


“I think Justice Kennedy’s opinion was very much saying, ‘We’re not going to change the law,’” Gans said.


But conservatives also found something to like in the court’s decision, and said Texas will likely have a harder time defending its admissions process now.


“Discriminating because of race is wrong, and this was a victory for our color-blind Constitution,” Sen. Ted Cruz (R-Texas) said in a statement.


Texas automatically admits in-state students who graduated in the top 10 percent of their high school class. Race is one factor in the “holistic” process the school uses to fill its remaining spots.


Public universities need to prove two points when defending a racial preference, the court said: first, that it has a compelling interest in promoting diversity; and second, that its specific program is narrowly tailored to serve that interest.


Kennedy said the government’s interest in diversity is real.


“The attainment of a diverse student body … serves values beyond race alone, including enhanced classroom dialogue and the lessening of racial isolation and stereotypes,” Kennedy wrote.


But the lower court essentially took the school’s word for it when determining whether its program was narrowly tailored, Kennedy said.


He said the use of race must be subjected to a more rigorous legal standard known as “strict scrutiny.”


Only Justice Ruth Bader Ginsburg dissented, and she read part of her dissent from the bench, a step reserved for cases in which the losing side feels especially strongly that the majority’s ruling was a mistake.


She said the court’s precedents on affirmative action were perfectly clear.


“I have several times explained why government actors, including state universities, need not blind themselves to the still lingering, every day evident, effects of centuries of law-sanctioned inequality,” Ginsburg said.


“Among constitutionally permissible options, I remain convinced, those that candidly disclose their consideration of race are preferable to those that conceal or obscure what drives them.”

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