June 24, 2013

Supreme Court sends affirmative action case back to lower courts

Its 7-1 decision avoids the larger constitutional issues around continued use of race as a factor in college admissions.

The Associated Press

WASHINGTON — Affirmative action in university admissions survives for now, under a Supreme Court ruling in a closely watched case that involves the University of Texas.

In a 7-1 decision Monday, justices directed a lower appellate court to examine more closely the University of Texas’ admissions policies that may take race into account. Though the university now faces tougher scrutiny, the decision leaves intact an earlier Supreme Court ruling that concluded racial diversity in college admissions can be justified as a compelling state interest.

“A university must make a showing that its plan is narrowly tailored to achieve … 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,” Justice Anthony Kennedy wrote for the majority.

The decision sends the University of Texas affirmative action challenge back to the New Orleans-based 5th U.S. Circuit Court of Appeals. There, Kennedy said, judges must determine whether the university has demonstrated that its admissions program is “narrowly tailored” to obtain the educational benefits of diversity.

“Whether this record, and not simple assurances of good intention, is sufficient is a question for the court of appeals,” Kennedy wrote, adding pointedly that “the reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”

The decision may be most important for what it does not do.

Frustrating the hopes of some conservatives, including Justices Antonin Scalia and Clarence Thomas, the court’s majority didn’t use the University of Texas case to overturn a 2003 decision that involved the University of Michigan Law School. In that earlier ruling, the Supreme Court upheld the Michigan school’s use of race as one admissions factor among many, and Kennedy reaffirmed this earlier conclusion as a “given” Monday rather than as something to be second-guessed.

“We’re thrilled that the court has reaffirmed affirmative action as one tool that colleges can utilize,” said Sherrilyn Ifill, the president of the NAACP Legal Defense and Educational Fund.

Bill Powers, the president of the University of Texas at Austin, said in a statement that university officials were encouraged by the ruling, although they still have a legal fight ahead of them.

“We remain committed to assembling a student body … that provides the educational benefits of diversity on campus while respecting the rights of all students and acting within the constitutional framework established by the court,” Powers said.

The largely positive reactions from affirmative action supporters reflected, in part, relief stemming from their recognition that they may have dodged a bullet.

Justice Sandra Day O’Connor, a Republican appointee who’s since retired, wrote the 2003 majority opinion, which included the key conclusion that “student body diversity is a compelling state interest that can justify the use of race in university admissions.”

Justice Samuel Alito, a staunch conservative who’s voiced much more skepticism about racial preferences, replaced O’Connor in 2005. Alito, nonetheless, didn’t join either Scalia or Thomas on Monday in writing concurring opinions to voice disapproval of racial preferences.

Justice Ruth Bader Ginsburg was the sole dissenter, and she underscored her points by reading a summary of her dissent from the bench.

“The court rightly declines to cast off the equal protection framework settled 10 years ago,” Ginsburg said, though she added concerns about the rest of the court’s decision Monday.

(Continued on page 2)

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