To many observers, the Supreme Court’s 4-to-3 decision on Thursday that upheld the use of race-conscious admissions at the University of Texas at Austin came as a surprise.
Even inside the court, it seems: “Something strange has happened,” wrote Justice Samuel A. Alito in the first line of his dissent, “since our prior decision in this case.” In 2013 the court ruled that a lower court, the U.S. Court of Appeals for the Fifth Circuit, had not applied enough scrutiny to Austin’s admissions program, and ordered it to revisit the case. The appeals court then effectively affirmed its prior decision. That judgment was appealed once again to the Supreme Court, which heard arguments in December.
Some Supreme Court cases were expected to deadlock after Justice Antonin Scalia, a vocal critic of affirmative action in admissions, died in February. But his death was not expected to alter the outcome of the Texas case because Justice Elena Kagan had recused herself. During her time as U.S. solicitor general, Justice Kagan had been involved with the Obama administration’s submission of a brief supporting the university. Her recusal left just seven justices to decide the case.
Many observers expected a 4-to-3 decision striking down the Texas policy, with Justice Anthony M. Kennedy serving as the swing vote. Instead, he wrote the majority opinion in the case, Fisher v. University of Texas at Austin, No. 14-981, which upheld the policy. Here are three key takeaways from that decision:
1. This is not a sweeping affirmation of race-conscious admissions on college campuses.
Embedded in Justice Kennedy’s opinion is a sense of weariness about the case and a doubt that overturning the appeals court’s ruling would be productive.
The complications inherent in the case — particularly that Texas’ policy is a combination of a state-mandated top-10-percent law (which guarantees all students in the top 10 percent of their high-school class admission to the public college of their choice) and a holistic review of many factors, including race — appeared to limit the scope of the majority opinion. Abigail N. Fisher did not challenge the state-mandated plan, leaving only one segment of Austin’s admissions process up for review.
“Under the circumstances of this case, then, a remand would do nothing more than prolong a suit that has already persisted for eight years and cost the parties on both sides significant resources,” Justice Kennedy wrote. “Petitioner long since has graduated from another college, and the university’s policy — and the data on which it first was based — may have evolved or changed in material ways.”
“The fact that this case has been litigated on a somewhat artificial basis, furthermore, may limit its value for prospective guidance,” he continued.
2. But a majority on the court believes Texas’ holistic review of applicants is defensible and legal.
Justice Kennedy rejected Ms. Fisher’s argument that Austin would be better off if it relied solely on the top-10-percent plan — in other words, class rank — to select applicants.
Ms. Fisher “would be hard-pressed to find convincing support for the proposition that college admissions would be improved if they were a function of class rank alone,” Justice Kennedy wrote. He went on:
A system that selected every student through class rank alone would exclude the star athlete or musician whose grades suffered because of daily practices and training. It would exclude a talented young biologist who struggled to maintain above-average grades in humanities classes. And it would exclude a student whose freshman-year grades were poor because of a family crisis but who got herself back on track in her last three years of school, only to find herself just outside of the top decile of her class.
3. The Austin campus has a responsibility to continue re-evaluating its admissions policy.
Justice Kennedy took care to put the university on notice that it’s not off the hook. In fact, he devoted the final two paragraphs of the opinion to advising the campus to look ahead.
Because of its focus on race-conscious admissions, the university has “at its disposal valuable data about the manner in which different approaches to admissions may foster diversity or instead dilute it,” Justice Kennedy wrote. And, in that spirit, the university “must continue to use this data to scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.”
The final paragraph reads:
The court’s affirmance of the university’s admissions policy today does not necessarily mean the university may rely on that same policy without refinement. It is the university’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.
