The 7-to-1 Supreme Court decision requires the lower court to apply a new, tougher test to the case: Schools challenged on race-based admissions policies must show that there are no workable, race-neutral alternatives to achieve diversity.

By Warren Richey, Staff writer / June 24, 2013

WASHINGTON – The US Supreme Court on Monday stopped short of striking down a race-based admissions program at the University of Texas and instead sent the case back to a lower court to undertake a more rigorous examination of whether the program violates equal protection rights of white students.

The high court voted 7 to 1 to send the case back to the Fifth US Circuit Court of Appeals to apply the highest level of judicial scrutiny to assess whether the university’s plan passes or fails constitutional demands.

“Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice,” Justice Anthony Kennedy wrote in the majority opinion.

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The opinion establishes a new, tougher test for assessing the constitutionality of affirmative action admissions programs. The challenged school must be able to prove there are no workable race-neutral alternatives to achieve a racially diverse student body.

“The reviewing court must ultimately be satisfied that no workable race-neutral alternative would produce the educational benefits of diversity,” Justice Kennedy wrote.

He added that “strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.”

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At issue in the case was whether the affirmative action admissions program at the University of Texas at Austin violated the Constitution’s “equal protection” clause by relying too heavily on race as a factor in admitting minority students to the state’s flagship university.

In a lone dissenting opinion, Justice Ruth Bader Ginsburg said she would not return the University of Texas case to the lower court for a second look.

“As the thorough opinions below show, the University’s admissions policy flexibly considers race only as a ‘factor of a factor of a factor of a factor’ in the calculus,” she wrote in a four-page dissent.

She said the court was correct to avoid any attempt to overturn the equal protection framework settled an earlier affirmative action precedent, the 2003 decision upholding a race-based admissions program at the University of Michigan Law School.

Kennedy’s majority opinion affirms the 2003 decision approving the use of race as one of several factors in admissions at the Michigan Law School. But the language of Monday’s ruling beefs up the application of strict scrutiny compared to how it was applied in the Michigan Law School case.

Monday’s decision will make it more difficult for college officials to justify the use of race as a factor in college admissions. It places a premium on institutions developing race-neutral criteria and other color-blind procedures.

Kennedy said that race-conscious admissions programs must only be used as a last resort, and only then after surviving strict judicial scrutiny.

Civil rights groups reacted with a sense of relief that the high court did not strike down the Texas program.

“Today’s decision is an important victory for our nation’s ongoing work to build a more inclusive, diverse America,” Wade Henderson, president of the Leadership Conference on Civil and Human Rights, said in a statement.

“We believe that the University of Texas’s admissions policy is a carefully crafted one that will ultimately be upheld by the Court of Appeals,” he said.

David Gans of the Constitutional Accountability Center noted that the court avoided directly addressing the constitutional issue in the case.

“The court backed away from the edge of the cliff today,” he said. “The court surprised most court watchers by issuing an extremely narrow decision.”

Conservative commentators saw the decision as part of a broader, continuing move by the court’s conservatives in opposition to race-based admissions.

“The court did not decide today whether [race-based] 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,” said Carrie Severino, chief counsel at the Judicial Crisis Network.

Since the 1990s, UT has relied on a race-neutral program for admissions that guarantees a spot in the freshman class to anyone who graduates in the top 10 percent of a high school in Texas. That program accounts for up to 90 percent of students from Texas who agree to attend the university.

The top 10 percent program relies on existing segregated housing patterns and racially polarized schools in Texas to ensure that a substantial number of African-American and Latino students are guaranteed admission to UT.

Monday’s decision stems from a lawsuit filed by Texas resident Abigail Fisher, who was denied admission to UT in 2008.

Ms. Fisher did not qualify for automatic admission under the state’s top 10 percent admissions plan. Students seeking one of the few remaining places in the entering class must compete under a highly selective process that includes consideration of an applicant’s race and ethnicity.

After her application was denied, Fisher claimed that less-qualified black and Hispanic students were admitted under the university’s race-based affirmative action program. Fisher is white.

At issue in the case was whether the university’s use of race in college admissions was justified and in accord with the high court’s decision in the 2003 Michigan Law School case.

In the Texas case, a federal judge and a federal appeals court panel upheld the university’s affirmative action program. The appeals court said judges should grant a degree of deference to admissions officials seeking to assemble a diverse student body.

In vacating the appeals court’s decision and remanding it for further consideration, the majority justices instructed the lower court judges to apply the correct analysis.

“The District Court and the Court of Appeals confined the strict scrutiny inquiry in too narrow a way by deferring to the University’s good faith in its use of racial classifications and affirming the grant of summary judgment on that basis,” Kennedy wrote.

He added: “The Court of Appeals must assess whether the University has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.”

Kennedy said mere “assurances of good intentions” by the university are not enough. The appeals court must examine the record and apply strict scrutiny.

Justice Elena Kagan took no part in the case because she worked on it while serving as solicitor general in Obama administration.

In a concurring opinion, Justice Antonin Scalia said he continued to adhere to his view that the Michigan Law School case was wrongly decided. He noted that Ms. Fisher’s lawyer had not asked the high court to overturn the Michigan decision. “I therefore join the court’s opinion in full,” he said.

Justice Clarence Thomas said in a 20-page concurring opinion that he would overturn the 2003 Michigan decision and declare that any use of race in college admissions as categorically prohibited by the equal protection clause.

He said attempts by college officials to undertake racial engineering carry insidious consequences for the intended beneficiaries. Race-based admissions programs stamp black and Hispanic students with a badge of inferiority, Justice Thomas wrote.

“Although cloaked in good intentions, the University’s racial tinkering harms the very people it claims to be helping,” he said.

The case was Abigail Noel Fisher v. University of Texas at Austin (11-345).