Civil and Human Rights

Supreme Court Sends Affirmative Action Back to Appellate Judges



The Supreme Court avoided a sweeping ruling on the constitutionality of affirmative action programs today, in the highly anticipated case brought by a white student, Abigail Fisher, against the University of Texas.


In the 7-1 ruling, the justices punted, sending the case back to be re-examined by the Fifth Circuit federal appeals court on the grounds that the lower court did not review the university’s affirmative action program carefully enough.


The justices ruled that the lower court should have required the university to prove that its program was narrowly tailored enough to produce the diversity objectives it was designed to achieve.


“Narrow tailoring also requires a reviewing court to verify that it is ‘necessary’ for the university to use race to achieve the educational benefits of diversity,” Justice Anthony Kennedy wrote in the court’s opinion. “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”


The outcome is unlikely to satisfy opponents or proponents of affirmative action programs because it does not clearly rule on whether the University of Texas’s program is constitutional.


Today’s decision means that the University of Texas’ affirmative action program will be allowed to continue unless it is struck down by the courts.


Kennedy said the court is required to “examine with care, and not defer, to a university’s serious good, faith consideration of workable race-neutral alternatives.”


Justice Ruth Bader Ginsburg dissented from the decision, saying she would not have sent it back to the lower court for a “second look.”


Ginsburg said the University of Texas “reached the reasonable, good-faith judgment that supposedly race-neutral initiatives were insufficient to achieve in appropriate measure, the educational benefits of student body diversity.”


Elizabeth Wydra of the Constitutional Accountability Center, which filed a brief in the case supporting the Texas program, said, “In today’s decision, the court backed away from the edge of a cliff by issuing a narrow ruling that affirmed diversity as a legitimate goal for admissions policies.”


Abigail Fisher said in a statement, “I am grateful to the justices for moving the nation closer to the day when a student’s race isn’t used at all in college admissions.


“It has been a great privilege to witness how our legal system works to seek justice for an individual like me. The most important lesson I have learned during the last five years is to stick by your ideals even if it means some personal sacrifice.”


She and her lawyers are expected to give a news conference on the ruling later today in Washington.


Justice Elena Kagan did not participate in the case, presumably because she had dealt with it in her previous job as U.S. solicitor general.


And Justice Clarence Thomas, who concurred with the majority opinion, wrote a separate opinion saying that he would overrule the 2003 affirmative action case, Grutter v. Bollinger, to prohibit the state’s use of race in higher education admissions entirely.


“I would overrule Grutter v. Bollinger, and hold that a state’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause,” Thomas wrote of the 2003 Supreme Court case that upheld the limited use of race in law school admissions. “As should be obvious, there is nothing ‘pressing’ or ‘necessary’ about obtaining whatever educational benefits may flow from racial diversity.”


Carrie Severino, chief counsel to the Judicial Crisis Network and former law clerk for Justice Thomas, said, “A nearly unanimous court has agreed that the Constitution places a very heavy burden on universities that wish to use racial preferences in admissions.


“Minority students can succeed at the highest level without racial preferences and, in fact, a growing body of empirical evidence indicates that these policies do more harm than good for the very people they are supposed to help.


“The court did not decide today whether those preferences are valid, but they seem one step closer to agreeing with the countless parents who simply want their children to be evaluated on the basis of their character and hard work,” she added.


The case was brought by Fisher, a white Texan who says she was denied admission to the school in 2008 based on the color of her skin.


The Texas legislature passed the “Top Ten Percent Law” in 1997, which mandates that Texas high school seniors in the top 10 percent of their class be automatically admitted to any Texas state university.


In addition to that program, the school considers race and several other factors for admission. Fisher did not qualify for automatic admission.


Instead, she competed with other non-Top 10 state applicants, some of whom were entitled to racial preferences. She argues she was denied a fair chance at admission because of her race.


In briefs filed with the court, her lawyers argued, “the Fourteenth Amendment requires an admissions process untainted by racial preferences absent a compelling, otherwise unsatisfied, government interest and narrow tailoring to advance that interest without undue infringement on the rights of non-preferred applicants.”


Fisher eventually attended Louisiana State University and is now working as a financial analyst in Austin, Texas.


Lawyers for the school argued that UT seeks to “assemble a class that is diverse in innumerable ways — including race — at advance its mission of educating students and preparing them to be leaders of tomorrow.”


It was only in 2003 that the Supreme Court took up a similar affirmative action case and narrowly upheld the limited use of race as a factor in law school admissions. That decision, called Grutter v. Bollinger, held that the government has a compelling interest in diversity in public universities.


But after O’Connor retired, she was replaced with Justice Samuel Alito, who is more skeptical of racial classifications.

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