Attorney Bert Rein speaks to the media while standing with plaintiff Abigail Noel Fisher outside the U.S. Supreme Court in October 2012. (Mark Wilson/Getty Images)
The Supreme Court has surprised legal experts by declining to strike down the University of Texas' use of race in undergraduate admissions. On Monday, the justices sent the case back to a lower court for a rehearing, dodging a decision on whether affirmative-action policies at public colleges around the country are unconstitutional.
Justice Anthony Kennedy, the court's conservative-leaning swing vote, wrote the opinion for Fisher v. University of Texas, which was decided 7-1. Justice Ruth Bader Ginsburg, the court's liberal leader, dissented, arguing that the lower court's decision in favor of affirmative action should stand.
Kennedy said the federal Fifth Circuit must rehear the case to decide whether UT "offered sufficient evidence to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity." The court also requires the lower court to decide whether the college could use any "race neutral" means of creating a diverse campus before resorting to affirmative action, a slightly stricter standard than has been expressed by the court in the past.
"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," the justices wrote.
The decision comes as a surprise, since during oral arguments in the case in October, many of the conservative-leaning justices seemed poised to issue a broader ruling invalidating the use of race in admissions. Kennedy has also frequently expressed skepticism of affirmative-action programs.
"Affirmative action lives to see another day," Adam Winkler, a constitutional law expert at UCLA, told Yahoo News. "The Supreme Court seemed prepared to strike a real blow against affirmative action back in October. But the Fisher case reaffirms [previous] Supreme Court cases that allow universities to take race into account."
Abigail Noel Fisher brought suit against the University of Texas after she was denied admission in 2008. UT automatically admits Texans who graduate in the top 10 percent of their high school classes, but fills its remaining seats by judging applicants on a combination of GPA, test scores, race and other factors. Fisher claimed she was discriminated against because she is white when she was denied admission. The college argued that Fisher's GPA and standardized test scores made her inadmissible regardless of her race and that using race as one factor in admission helps it maintain a diverse student body.
The Supreme Court established in 2003 in Grutter v. Bollinger that universities could use race as a factor in admissions as long as they did not use quotas (for example, that 10 percent of the class must be black). The justices said affirmative action was still necessary to create a diverse student body, which it ruled was a compelling state interest. The majority wrote that they believed that in 25 years, affirmative action would no longer be necessary and should be stopped. This "sunset" provision was skewered by the four dissenting justices.
Justices Antonin Scalia and Clarence Thomas both wrote in concurring opinions that they would overrule Grutter on the grounds that it improperly allows publicly funded universities to discriminate on the basis of race. The conservative justices noted, however, that the plaintiffs in the Fisher case did not ask the court to overrule Grutter.
In a blistering dissent, Thomas wrote that universities' desire for a diverse student body is not necessary or pressing enough to justify affirmative action, which he describes as racial discrimination. Thomas compared the case for "racial tinkering" in admissions to arguments made by segregationists 60 years ago that "separate but equal" education would ultimately help black people. "The Constitution does not pander to faddish theories about whether race mixing is in the public interest," Thomas wrote. "The Equal Protection Clause strips States of all authority to use race as a factor in providing education."
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