Another Round on Affirmative Action

WASHINGTON -- The U.S. Supreme Court today issued its long-awaited ruling on affirmative action -- but didn't offer a definitive opinion on whether colleges may consider the use of race in admissions.

Ruling 7-1, the court found that the U.S. Court of Appeals for the Fifth Circuit had erred in not applying "strict scrutiny" to the policies of the University of Texas at Austin. The case is Fisher v. University of Texas at Austin, in which Abigail Fisher, a white woman rejected for admission by the university, said that her rights were violated by UT-Austin's consideration of race and ethnicity in admissions decisions. Fisher's lawyers argued that the University of Texas need not consider race because it has found another way to assure diversity in the student body.

The decision said that "good faith" by the university would not be enough to justify the consideration of race. But the decision -- by Justice Anthony Kennedy -- does not offer an opinion on whether the University of Texas can produce sufficient evidence. Rather, it faults the appeals court for not reviewing that question using the high bar of "strict scrutiny" for the consideration of race.

The Supreme Court did not -- as some thought it might -- reverse past decisions that allowed colleges to consider race. In fact, the conclusion of the decision states that colleges must meet the requirements previously given by the court to justify the use of race. Quoting from the landmark 1978 Bakke decision, today's ruling says: "In order for judicial review to be meaningful, a university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that 'encompasses a ... broa[d] array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.'"

It is likely that today's ruling could mean that -- after another round at the Fifth Circuit -- the case could return to the Supreme Court.

Moments after the decision was handed down, Michael Olivas, an expert on higher education law (and a defender of affirmative action), e-mailed: "Affirmative action lives on by a thread, and demography will start to assert itself." Olivas is director of the Institute for Higher Education Law and Governance at the University of Houston and author of Suing Alma Mater: Higher Education and the Courts (Johns Hopkins University Press).

Only Justice Ruth Bader Ginsberg dissented from the opinion. She wrote that Texas had in fact presented sufficient evidence to justify the consideration of race. "[G}overnment actors, including state universities, need not be blind to the lingering effects of “an overtly discriminatory past,”  she wrote. "The university’s admissions policy flexibly considers race only as a 'factor of a factor of a factor of a factor' in the calculus," she wrote and Texas adopted the policy only after a review in which it "reached the reasonable, good-faith judgment that supposedly race-neutral initiatives were insufficient to achieve, in appropriate measure, the educational benefits of student body diversity."

Justice Clarence Thomas joined the majority's conclusion, but wrote a concurring opinion arguing that the Supreme Court should have gone further, by reversing past decisions that have permitted the use of race in admissions decisions. He compared today's affirmative action policies to the Jim Crow era of higher education. "There is no principled distinction between the university’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits," he wrote.

And while it is unclear if or when this case will return to the Supreme Court, the justices are already scheduled to take up the issue of affirmative action in higher education in another case next term. The justices agreed in March to consider whether Michigan voters in 2006 had the legal right to bar the state's public colleges and universities from considering race or ethnicity in admissions. That ruling could inform any subsequent consideration on Fisher and also could set the stage for challenges (or block challenges) to bans on the consideration of race in admissions by public colleges in other states, most notably California.

Both Sides Declare Victory

As lawyers and educators started to analyze the decision, defenders and critics of affirmative action alike were starting to declare victory -- each pointing to different elements of the ruling. For defenders of affirmative action, the crucial point was that the Supreme Court -- leaving aside the concurring opinion by Justice Thomas -- did not signal any retreat from the idea that colleges can in some circumstances consider race.

Wade Henderson, president and CEO of the Leadership Conference on Civil and Human Rights, issued this statement: "Today’s decision is an important victory for our nation’s ongoing work to build a more inclusive, diverse America. We believe that the University of Texas’s admissions policy is a carefully crafted one that will ultimately be upheld by the Court of Appeals. In reaffirming that a diverse learning environment benefits students, our workforce and the country as a whole, the ruling makes it clear that now is the time to expand our commitment to diversity in all of our institutions to ensure that we are well-positioned to compete in the diverse economy of the 21st century.

But Edward Blum, director of the Project on Fair Representation, which provided legal counsel to Fisher in the case, predicted that today's ruling set the stage for the appeals court to reject the Texas policies. “This decision begins the restoration of the original colorblind principles to our nation’s civil rights laws," said his statement. "The Supreme Court 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. This opinion will compel the Fifth Circuit to strike down UT’s current use of race and ethnicity."

Notably, that appeals court already has divided on the issue. In 2011, after Fisher's appeal was rejected by a three-judge panel of the court, she appealed to the full appeals court for a hearing. That court voted against reconsideration, 9 to 7, with some justices issuing strong dissenting views questioning the legality of the Texas policy.

Decades of Dispute

Fisher's argument was that past Supreme Court decisions have allowed colleges and universities to consider race and ethnicity only if diversity could not be achieved in race-neutral ways, so the University of Texas had no legal need to consider race. The university in turn said that the percent plan provided it with only a limited level of diversity and that it had the right to take additional measures to assure a greater level of diversity. Most major college associations backed the University of Texas, as did many civil rights organizations. Asian-American groups split on the case.

Today's ruling came nearly a decade after the Supreme Court last weighed in on the consideration of race in admissions. At that time, a divided court narrowly upheld the consideration of race in some circumstances, finding that the University of Michigan law school considered race in an appropriate way. But at the same time, the Supreme Court rejected how the University of Michigan's main undergraduate college was considering race. And the majority decision upholding the use of race by the law school -- written by Justice Sandra Day O'Connor -- suggested that colleges needed to find other ways to promote diversity within about 25 years.

Many legal experts were surprised that the Supreme Court returned to the issue of affirmative action so soon (in Supreme Court years) after its rulings in the Michigan case. But the court's make-up has changed, and the Fisher case -- based in part on the Texas percent law -- offered an unusual way to challenge the consideration of race. Fisher sued in 2008, and lost a federal district court ruling as well as at the U.S. Court of Appeals for the Fifth Circuit.

Prior to the Michigan cases, the key Supreme Court decision on the consideration of race in admissions was in 1978, in Regents of the University of California v. Bakke. In that decision (also with the justices split), the court ruled that colleges could not use quotas to reserve spots for students from particular racial or ethnic groups, but could consider race among a range of factors in admissions decisions.