Posted on June 24, 2013

Supreme Court Punts on Texas Affirmative-Action Case

Jess Bravin, Wall Street Journal, June 24, 2013

Capping a year of suspense with a surprise anticlimax, the Supreme Court Monday sidestepped a sweeping ruling on affirmative action and instead directed lower courts to re-examine whether a race-conscious admissions program at the University of Texas at Austin should survive constitutional scrutiny.


Both sides took solace in the 7-1 ruling. Justice Elena Kagan, who as solicitor general participated in the Obama administration’s defense of affirmative action, sat out. In dissent, Justice Ruth Bader Ginsburg wrote that the UT plan passed muster and shouldn’t be returned to the lower courts for additional review.

Edward Blum, an opponent of racial preferences who financed the lawsuit through his Project on Fair Representation, expressed confidence the program would fail when contested at trial. “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,” he said. “This decision begins the restoration of the original colorblind principles to our nation’s civil-rights laws.”

UT Austin President Bill Powers said he was “encouraged” by the ruling. “We will continue to defend the university’s admission policy on remand in the lower court under the strict standards” laid out by court precedents, he said. “We believe the university’s policy fully satisfies those standards.

After consideration in the lower courts, the issue could well return within several years to the Supreme Court, possibly for a more definitive decision.

The current admissions policy, which considers race in filling a small percentage of the university’s slots, will remain in place while legal proceedings continue, said Mr. Powers.


A U.S. district court in Austin dismissed the suit when it initially was filed on behalf of Abigail Fisher, a white student rejected by UT. The district court, later upheld by the Fifth U.S. Circuit Court of Appeals in New Orleans, found that the UT program met the requirements the Supreme Court laid out in Grutter v. Bollinger, a 2003 affirmative action case from the University of Michigan Law School.

In Grutter, the court voted 5-4 to uphold racial diversity as a compelling governmental interest, and found the law school’s consideration of race acceptable, as it didn’t involve a specific quota for minority admissions or provide minority applicants automatic bonus points in the admissions formula.


Monday’s opinion reiterated Justice Kennedy’s 2003 view that universities should be required to show why giving preferences based on an applicant’s race was necessary. He wrote that lower courts had misunderstood the Grutter precedent: While they should generally accept a university’s academic judgment that student diversity provides educational benefits, courts shouldn’t defer to college administrators regarding the methods used to obtain it.

“The University must prove that the means” it has chosen “to attain diversity are narrowly tailored to that goal,” Justice Kennedy wrote.

Before using racial classifications in admissions, UT must demonstrate “that available, workable, race-neutral alternatives do not suffice,” he said.

Ms. Fisher’s attorneys argued that UT’s regular admission system already provided sufficient diversity among the student body.

UT gives automatic entry to any Texas student who graduates in roughly the top 10% of his or her high-school class. That program was designed to maintain ethnic and racial diversity after a 1996 federal appeals court ruling restricted affirmative action in Texas and nearby states.

After 2003, when the Supreme Court voted 5-4 to reinstate affirmative action, UT quickly supplemented its top-10% plan with an additional admissions pathway that allowed consideration of race and other factors beyond grades and test scores. {snip}