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.

At the same time, conservatives said the decision might prove problematic for the University of Texas once the appellate court takes a second look, with Republican Sen. Ted Cruz of Texas saying, “This was a victory for our color-blind Constitution.”

Determining that a policy meets a “compelling state interest” is one of the crucial elements a court considers when ruling on whether racial distinctions comply with the Constitution. Under the 14th Amendment, states must grant “the equal protection of the laws” to all people. The other crucial element courts consider is whether the racial policy is “narrowly tailored,” which rules out sweeping quotas.

The Texas case arose from a challenge initially filed by Abigail Noel Fisher, a Caucasian woman who applied as an undergraduate to the University of Texas for the class that entered in the fall of 2008. Because she wasn’t in the top 10 percent of her high school class, she wasn’t guaranteed admission under the state’s college policy.


The University of Texas guarantees admission to students in the top 10 percent of their high school classes, but Fisher’s 3.59 GPA was too low.

The university also admits a certain number of other students, for whom race, leadership experience, socio-economic status and other factors may provide admissions advantages. Fisher was rejected. She subsequently enrolled at Louisiana State University and graduated last year.

Other schools likewise have considered race in admissions, with the University of North Carolina stressing in a legal brief that “the process is far from mechanistic,” while the University of Kansas and Pennsylvania State University added separately that “race is only one of many factors” taken into account

The case was heard last October, at the very start of the term that’s scheduled to end this week, and it took the justices longer to decide than any other case this term.

Justice Elena Kagan, formerly the solicitor general in the Obama administration, recused herself from the case.

The Supreme Court will issue more decisions Tuesday, potentially including several cases that involve same-sex marriage.

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