In a decision that could narrow the use of affirmative action in American
education, the U.S. Supreme Court today ruled that a federal appeals court
was wrong to dismiss a case arguing that the University of Texas illegally
discriminated against a white college student when it rejected her application
In a 7-1 ruling written by Justice Anthony Kennedy, the court that Abigail
Fisher of Sugar Land should have been able to present her case to a federal
appellate court. She argued that she was illegally denied entry because
the state university considered her race as part of a package of factors
in the admissions process for students who fail to meet UT’s automatic
“The reviewing court must ultimately be satisfied that no workable
race-neutral alternatives would produce the educational benefits of diversity,”
Justice Ruth Bader Ginsburg was the sole dissenter.
Justice Clarence Thomas, in a concurring opinion, said he would have overturned
the landmark 2003 case upholding affirmative action.
Justice Elena Kagan recused herself because of her involvement in the case
as President Obama’s solicitor general.
The court vacated the Fifth Circuit ruling and remanded it to lower courts
for further action. According to Amy Howe of SCOTUSblog.com, Kennedy held
that “because the Fifth Circuit did not hold the university to the
demanding burden of strict scrutiny articulated in Grutter and Bakke,
its decision afffiming the district court’s grant of summary judgment
Fisher argued that affirmative action in college admissions, as practiced
by UT, is an unfair, simplistic and outdated method to remedy the evils
of twentieth century American Apartheid.
The high court’s decision today postpones a final showdown over affirmative
action in college admissions — a hot button subject for nearly four
decades. The Fisher case will now wind its way back through the federal
judiciary and may return to the Supreme Court in 2014 or 2015.
The Texas case, which was expected by most constitutional scholars, could
jeopardize the future of affirmative action in college admissions. The
university was on the defensive from the moment the high court accepted
the case because four of its nine members have previously expressed hostility
toward most forms of preference based on skin color or ethnic background.
A hot-button issue for three decades, racial preference in the admissions
process arose again when Fisher sued the school after being denied admission
to the 2008 freshman class. She argued that the university should not
be permitted to consider race or ethnicity as a factor in its self-described
“holistic review” of applicants’ merits.
A federal district court and appeals court both found that Fisher failed
to prove the UT scheme illegal, but the U.S. Supreme Court reversed the
lower courts’ decisions.
To win the case, the university’s lawyers needed to convince swing
conservative Justice Anthony Kennedy. But from the time of oral arguments
in October, it was a difficult sell. At the time, Kennedy said the university
was arguing “is that what counts is race above all.”
“You want underprivileged of a certain race and privileged of a certain
race, ” Kennedy told UT lawyer Gregory Garre.
UT strongly defended its way of evaluating prospective students, arguing
that affirmative action is still a useful tool in building diverse student
bodies. Most of UT’s freshman class is admitted through an automatic
process that used to be known as the 10 percent rule, which guaranteed
acceptance to any student graduating in the top 10 percent of his public
high school class.
Although the law was modified in 2009 so that the percentage of those automatically
eligible varies slightly, the effect was to significantly increase the
number of minority students enrolled. But UT officials felt that total
was well short of what was desired, especially for African American students.
The problem, both for the school and for the justices reviewing the current
case, is how much diversity is desirable and, more importantly, legally
“There has to be a logical endpoint to your use of race, ”
Chief Justice Roberts said to UT’s Garre during oral arguments.
“What is the logical endpoint? When will I know that you’ve
reached a critical mass?”
Garre said the school looks carefully at enrollment data, especially for
black students. When the 10 percent plan was implemented, black enrollment
dropped to 3 percent. It has remained low even as Hispanic enrollment
has gone up.
“I think we all agree that 3 percent is not a critical mass, ”
Liberal justices noted that the Texas program is similar to one endorsed
by the high court in the 2003 case of Grutter v. Bollinger, a landmark
ruling that has guided colleges’ use of racial preference in admissions
over the past decade.
“It seems to me that this program is no more aggressive than the
one in Grutter, ” Justice Ginsburg said. during oral arguments.
“In fact, it’s more modest.”
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