College Affirmative Action Survives in High Court Ruling

Photographer: Mark Wilson/Getty Images

Travis Ballie holds a sign in front of the U.S. Supreme Court on October 10, 2012 in Washington, D.C. Close

Travis Ballie holds a sign in front of the U.S. Supreme Court on October 10, 2012 in Washington, D.C.

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Photographer: Mark Wilson/Getty Images

Travis Ballie holds a sign in front of the U.S. Supreme Court on October 10, 2012 in Washington, D.C.

The U.S. Supreme Court struck a compromise in its first test of university affirmative action in a decade, telling a federal appeals court to give tougher scrutiny to a University of Texas admissions program.

In a 7-1 ruling, the court left intact a 2003 decision that reaffirmed the right of universities to use race as a criterion for admissions. The majority instead said a federal appeals court hadn’t properly applied the standards laid out in the 2003 ruling.

Today’s decision provides a limited victory to opponents of racial preferences, giving them new grounds to challenge university admission policies around the country. The majority said universities must prove that their means of attaining diversity meet a demanding constitutional test known as “strict scrutiny.”

“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,” Justice Anthony Kennedy wrote for the majority.

Affirmative action has been a fixture on U.S. campuses since the 1960s, diversifying what had been many virtually all-white student bodies. Most of the nation’s selective colleges and professional schools consider race as they seek to ensure a multiracial student body. Blacks and Hispanics now make up more than a quarter of U.S. college students.

10 Percent

At the core of the debate was whether universities can adequately diversify without resorting to racial preferences. Under Texas’s Top Ten Percent Law, the university’s flagship Austin campus admits three-quarters of its freshman class each year solely on the basis of high school class rank. That system, while race-neutral on the surface, ensures a significant number of minorities because it guarantees slots to students at predominantly Hispanic and black schools.

The university considers race only in admitting the rest of the class. Opponents of preferences say that’s unnecessary, given the success of the class-rank method. Texas counters that even with race-based admissions, a high percentage of its classes have few if any black and Hispanic students.

Kennedy said that while courts should defer to universities in determining whether diversity is essential to their educational mission, judges should closely scrutinize the means schools use to bolster minority enrollment.

‘No Deference’

“The university must prove that the means chosen by the university to attain diversity are narrowly tailored to that goal,” Kennedy wrote. “On this point, the university receives no deference.”

Edward Blum, who organized the challenge to the University of Texas policy, said the court had established “exceptionally high hurdles” for colleges to meet.

“It is unlikely that most institutions will be able to overcome these hurdles,” said Blum, the director of the Project on Fair Representation in Alexandria, Virginia, in an e-mailed statement. “This opinion will compel the Fifth Circuit to strike down UT’s current use of race and ethnicity.”

Texas said the ruling won’t force any immediate changes in its admissions policies. Bill Powers, the university’s president, said in a statement that its system “fully satisfies” the standards laid out by the Supreme Court.

Current Practices

Current admissions practices at universities can continue for at least another year as the case works its way again through the courts, said Michael Olivas, a University of Houston law professor who helped draw up the University of Texas admissions plan. Proponents of affirmative action will be relieved by the ruling, he said.

“This could have been so much worse and may yet be,” Olivas said in a telephone interview. Affirmative action “lives on, but all of us believe it’s under an impending death penalty.”

The 2003 decision, Grutter v. Bollinger, said colleges and graduate schools could consider race as long as they do so through a broad review of a student’s application and don’t mechanistically award extra points to every minority. The author of that 5-4 ruling, Sandra Day O’Connor, retired in 2006.

Joining Kennedy’s opinion today were Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito, Clarence Thomas, Stephen Breyer and Sonia Sotomayor. Sotomayor, the court’s first Latina justice, is a supporter of affirmative action who says she benefited from it during her career.

‘Discriminatory Past’

Writing in dissent, Justice Ruth Bader Ginsburg said Texas had followed the model the court approved in the 2003 case. She said government actors, including state universities, need not be blind to the lingering effects of “an overtly discriminatory past.”

In a concurring opinion, Thomas said he would have outlawed the use of race by university admissions offices.

“If the court were actually applying strict scrutiny, it would require Texas either to close the university or to stop discriminating against applicants based on their race,” he wrote. “The court has put other schools to that choice, and there is no reason to treat the university differently.”

Justice Elena Kagan didn’t take part in the case. She was the Obama administration’s top courtroom lawyer when the administration filed a brief at the appeals court level.

Supporters of affirmative action expressed relief that the court didn’t go further.

‘Great Success’

“It’s been a very important part of the great success of American education that is admired around the globe,” said Columbia University President Lee Bollinger, who as president of the University of Michigan in the late 1990s and early 2000s led the defense of its affirmative action programs. “It would be a great pity to retreat at this stage when the work is not over.”

The Texas policy was challenged by Abigail Noel Fisher, who applied unsuccessfully to the school in 2008 and later enrolled at Louisiana State University. A graduate of a Houston-area public high school, she said she was passed over by UT in favor of minority classmates with lower grades and fewer extracurricular activities.

The Supreme Court decision is a “net plus” for opponents of affirmative action, said Roger Clegg, president and general counsel of the Center for Equal Opportunity, a Falls Church, Virginia, nonprofit group opposed to racial preferences. The language of the court’s decision should continue to push universities to use alternatives to race -- such as income -- to improve diversity on campus, he said.

‘It’s Disappointing’

“It’s disappointing the court had the opportunity today to say definitively that considering race in admissions is not justified,” Clegg said in a telephone interview.

Texas had support in the case from some of the nation’s most powerful institutions. Fifty-nine companies -- including Microsoft Corp. (MSFT), Wal-Mart Stores Inc. (WMT), (WMT) Gap Inc., General Electric Co. (GE) (GE), Pfizer Inc., Shell Oil Co. and Viacom Inc. (VIAB) (VIAB) -- filed a brief saying they rely on universities to prepare a racially diverse workforce.

Those corporations were in the unusual position of arguing alongside the Obama administration, which cast affirmative action as a national security issue. The administration said race-conscious admissions, at the country’s military academies and at universities with Reserve Officer Training Corps programs, help ensure a diverse officer corps.

Texas argued that its program is a model of the type of plan the high court approved in the Grutter ruling.

The case is Fisher v. University of Texas at Austin, 11-345.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story: Jodi Schneider at jschneider50@bloomberg.net

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