A deeply divided Supreme Court upheld the use of racial preferences in admissions at the University of Texas Thursday, giving an unexpected vote of confidence to the type of affirmative action policies it has allowed for nearly four decades.
The 4-3 ruling did not address all programs designed to attract a diverse student body at colleges and universities. But Justice Anthony Kennedy and the court’s more liberal justices said Texas’ unique method of singling out some minority students for admission to its flagship campus in Austin was constitutional. The court previously had upheld the use of race in college admissions in 1978, then again in 2003.
«It remains an enduring challenge to our nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity,» Kennedy wrote. Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor agreed with the ruling.
Justice Samuel Alito slammed the decision as «affirmative action gone berserk» in a 51-page dissent that dwarfed the size of the court’s 20-page ruling. He said it allows the university to seek out African-American students with privileged backgrounds over low-income white and Asian students. Chief Justice John Roberts and Justice Clarence Thomas joined his dissent.
The dramatic decision was made without Justice Antonin Scalia, who died Feb. 13, and Justice Elena Kagan, who recused herself because she worked on the case as U.S. solicitor general before joining the court. It was the second time the justices had considered the case; in 2013, they sent it back to a federal appeals court with instructions to more closely scrutinize the university’s program, but that court again sided with the school.
This time, it appeared during oral argument that a majority of justices were prepared to rule that the school’s use of race violated the Constitution’s equal protection clause by giving minority students a leg up. The university already uses a system in which a set percentage of top-ranked students from all high schools that use such rankings are admitted, including those in heavily minority neighborhoods. That brings in African Americans and other minorities and was not challenged.
The case had threatened the use of racial preferences not only at the University of Texas-Austin but across the nation, since the court’s ruling could have cast doubt on most affirmative action policies. But in ruling for the school, the court’s majority did not absolve all universities of the need to meet a high standard when granting preferences.
«Asserting an interest in the educational benefits of diversity writ large is insufficient,» Kennedy said. «A university’s goals cannot be elusory or amorphous — they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.»
The court’s conservative justices made clear during oral argument in December that they were impatient with the continued use of affirmative action, more than a decade after a ruling by Justice Sandra Day O’Connor upheld racial preferences but said they should be unnecessary in 25 years.
Scalia had expressed the most controversial opinions. Citing briefs that suggest African Americans may fare better at «less advanced» or «slower-track» schools, he said, «I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.»
The court’s liberal justices stood firmly behind the continued use of racial preferences, something the high court upheld in California in 1978 and then in Michigan a quarter century later. They argued that the university at least should be able to prove its case at a fact-finding hearing in Texas before the court considers striking down its program. As it turned out, that will not be necessary.
Kennedy, as usual, was the swing vote. In December, he had complained that, more than two years after his 7-1 opinion sent the case back to a federal appeals court for closer scrutiny, little had changed. But in the end, he said the university had met its obligation to defend its program with data.
The case was brought by Abigail Fisher, a white woman denied entry to her state’s flagship university. She ultimately graduated from Louisiana State University but had continued to press her case with the aid of the Project on Fair Representation, a conservative legal group.
“Racial classifications and preferences are one of the most polarizing policies in America today,» Edward Blum, president of the organization, said Thursday. «As long as universities like the University of Texas continue to treat applicants differently by race and ethnicity, the social fabric that holds us together as a nation will be weakened.”
The school’s first method of boosting diversity — accepting the top students from every high school that uses class rankings — wasn’t challenged, even though it «trades on the de facto segregation that still exists in Texas» to pull in minorities, the school’s Supreme Court brief noted.
What was contested is the second method — a topping-off of each freshman class by focusing on a variety of factors, from special talents and extracurricular activities to socioeconomics, race and ethnicity. Those last factors are used to produce what the school calls «diversity within diversity» — a representative mix of minority students, rather than just those from segregated communities with similar backgrounds and experiences.
Alito attacked that goal for assuming that African Americans who compete against whites in integrated communities are more deserving of entrance to the state’s flagship campus than those in the top 10% in racially segregated schools.
«When affirmative action programs were first adopted, it was for the purpose of helping the disadvantaged,» he said in the dissent. «Now we are told that a program that tends to admit poor and disadvantaged minority students is inadequate because it does not work to the advantage of those who are more fortunate. This is affirmative action gone wild.»
Speaking from the White House after the ruling, President Obama applauded the justices’ ruling.
«We are not a country that guarantees equal outcomes, but we do strive to provide an equal shot to everyone, and that’s what the Supreme Court upheld today,» Obama said.
