Supreme Court Puts Off Big Legal Questions in Texas Affirmative-Action Case

Luke Sharrett, The New York Times, Redux

Two justices said they would strike down race-conscious admissions policies, if given a chance, but did not see the issue as before them because lawyers for the plaintiff, Abigail N. Fisher (pictured), had not directly challenged a key rationale for Texas’ policy.
June 24, 2013

Rather than deciding a legal battle over a race-conscious admissions policy at the University of Texas at Austin, the U.S. Supreme Court on Monday called for that battle to be waged anew, by striking down a summary judgment in the university's favor and instructing the lower courts to give the policy much stricter legal scrutiny than they had given it before.

In a 7-to-1 ruling, the Supreme Court held that the U.S. Court of Appeals for the Fifth Circuit had erred in presuming that the university had made a good-faith effort to consider race-neutral alternatives to its policy, and in putting the burden on the plaintiff in the case, a white applicant rejected in 2008, to prove otherwise.

The majority opinion, written by Justice Anthony M. Kennedy, said, "Strict scrutiny does not permit a court to accept a school's assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice."

The decision struck down the Fifth Circuit's ruling in favor of Texas and remanded the case to the lower courts "so that the admissions process can be considered and judged under a correct analysis."

In basing its decision on the narrow question of whether the lower courts had properly evaluated the undergraduate admissions policy at issue, the court's majority avoided the much broader and more controversial question of whether it continues to think race-conscious admissions policies are constitutional based on the belief that they promote educational diversity that serves a compelling government interest.

Two of the court's more conservative members, Justice Antonin Scalia and Justice Clarence Thomas, each offered concurring opinions in which they made clear that they would categorically strike down race-conscious college-admission policies as unconstitutional if given a chance. But, the justices wrote, they did not see the issue as before them because lawyers for the plaintiff, Abigail Noel Fisher, had not directly challenged the educational-diversity rationale for Texas' policy.

Justice Thomas also argued that race-conscious admission polices harm not only white and Asian-American students who are denied admission but also black and Hispanic students who are admitted to institutions where they are less prepared than are their classmates.

Impact Unlikely Beyond Texas

In sidestepping the broader question of whether such policies are constitutional, the court's decision in Fisher v. University of Texas at Austin (No. 11-345) left intact its landmark 2003 ruling in Grutter v. Bollinger, which upheld the consideration of applicants' race as long as it was part of a holistic consideration of individual applicants.

With its focus on how the lower courts had evaluated Texas' admissions policy, which already stood out as distinct compared with those of other colleges, Monday's decision appears unlikely to have much impact on other higher-education institutions beyond putting them on notice that their race-conscious admissions policies must be able to hold up under strict court scrutiny as narrowly tailored to serve the government's interest in promoting diversity on campuses.

Among the features of Texas' undergraduate admissions policy that distinguish it from those of other colleges is that the university has been able to admit relatively high numbers of black and Hispanic students without explicitly considering race through the state's "top 10 percent plan," a law guaranteeing admission to any public university for Texas high-school graduates in the top 10th of their class.

The university had argued that such an alternative to race-conscious admissions policies did not provide it with sufficient levels of diversity, especially considering the state's large black and Hispanic populations. Texas adopted its race-conscious admissions policy in 2004, a year after the Grutter decision.

In upholding a federal district court's summary judgment in favor of the university, the Fifth Circuit had focused on the question of whether Texas adopted its race-conscious admissions policy in good faith, and the court had presumed it did, placing the burden on lawyers for Ms. Fisher to prove otherwise.

The Supreme Court's majority opinion in Fisher argued that the court's precedents calling for strict scrutiny of such policies required the lower courts to be far more demanding

A court reviewing such a policy, Justice Kennedy wrote, "must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity," and must preclude the college from considering race if a workable alternative exists. Strict scrutiny, the ruling says, "imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice."

Both Sides Claim Victory

The lone dissenter in Monday's decision, Justice Ruth Bader Ginsburg, rejected the idea that Texas' 10-percent-plan is race-neutral, arguing that "only an ostrich" (with its head, presumably, in the sand) "could regard the supposedly neutral alternatives as race-unconscious." Noting that the percent plan had been adopted with the racial segregation of Texas' neighborhoods and schools "front and center stage," she said, "it is race consciousness, not blindness to race, that drives such plans."

She argued that the University of Texas had given sufficient consideration to alternatives and the Fifth Circuit had evaluated its efforts adequately. "I would not return this case for a second look," she wrote.

Justice Elena Kagan recused herself from consideration of the Fisher case. She was involved, in her previous position as U.S. solicitor general, in the Obama administration's submission of a brief supporting Texas when the case was before the Fifth Circuit court.

By avoiding some of the larger questions raised by the case and putting off a decision on Texas' policy until another day, the court gave both sides in the dispute reason to claim some measure of victory.

Edward Blum, director of the Project on Fair Representation, which had helped represent Ms. Fisher, issued a statement that said the Supreme Court's decision "has established exceptionally high hurdles for the University of Texas and other universities and colleges to overcome if they intend to continue using race preferences in their admissions policies."

"It is unlikely that most institutions will be able to overcome these hurdles," he said, predicting that the decision would "compel the Fifth Circuit to strike down" the University of Texas' consideration of applicants' race and ethnicity.

For her part, Ms. Fisher said, "I am grateful to the justices for moving the nation closer to the day when a student's race isn't used at all in college admissions."

On the other side of dispute, William C. Powers Jr., president of the University of Texas at Austin, said in a statement, "We're encouraged by the Supreme Court's ruling in this case." He said the university would continue to defend its policy, which, he argued, "fully satisfies" the standards for such policies laid out by the Supreme Court in past decisions.

In the meantime, he said, "today's ruling will have no impact on admissions decisions we have already made or any immediate impact on our holistic admissions policies."

Among higher-education leaders who were watching the case, M. Peter McPherson, president of the Association of Public and Land-Grant Universities, issued a statement that said "apparently a true resolution to this matter is still to come."

The American Council on Education issued a statement in which its president, Molly Corbett Broad, said, "Today's ruling is a complex one, but it does make clear that colleges and universities will have work to do. Each institution will need to show that any process that considers race and ethnicity as part of a holistic admissions review is precisely tailored to meet the goals of achieving the educational benefits that flow from diversity."