Adam Liptak, New York Times, June 30, 2015
The Supreme Court agreed on Monday to take a second look at the use of race in admissions decisions by the University of Texas at Austin, reviving a potent challenge to affirmative action in higher education.
The move, which supporters of race-conscious admissions programs called baffling and ominous, signaled that the court may limit or even end such affirmative action. The advocates speculated that the court’s most conservative members had cast the four votes needed to grant review of the case in the hope that Justice Anthony M. Kennedy would supply the fifth vote to strike down the Texas admissions plan.
Justice Kennedy has never voted to uphold an affirmative action program.
The consequences would be striking if the court sided with the plaintiff in the case, a white woman named Abigail Fisher, and did away with racial preferences in higher education. It would, all sides agree, reduce the number of black and Latino students at nearly every selective college and graduate school, with more Asian-American and white students gaining entrance instead.
A decision barring the use of race in admissions would undo a 2003 ruling that the majority said it expected to last for 25 years. In that 5-to-4 decision, in Grutter v. Bollinger, the Supreme Court said that public colleges and universities could not use a point system to increase minority enrollment but could take race into account in vaguer ways to ensure academic diversity.
When the court last considered Ms. Fisher’s case in 2013, supporters of affirmative action were nervous. But the court deferred conclusive action in what appeared to be a compromise decision.
In 2013, Justice Kennedy, writing for the majority, said the federal appeals court in New Orleans had been insufficiently skeptical of the Texas program, which has unusual features. The appeals court then endorsed the program for a second time.
In returning to the case, at least some justices seemed ready to issue a major decision on the role race may play in government decision making.
The Supreme Court’s 2013 decision in Fisher v. University of Texas reaffirmed that educational diversity is an interest sufficient to overcome the general ban on racial classifications by the government. But it added that public institutions must have good reasons for the methods they use to achieve that goal.
Colleges and universities, Justice Kennedy wrote, must demonstrate that “available, workable race-neutral alternatives do not suffice” before using race in admissions decisions.
Courts reviewing government programs that make distinctions based on race subject them to a form of judicial review known as “strict scrutiny,” which requires the government to identify a compelling goal and a close fit between means and ends.
Last year, in its second encounter with the case, a divided three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, ruled that the Texas admissions plan satisfied strict scrutiny.
“We are persuaded that to deny U.T. Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience,” Judge Patrick E. Higginbotham wrote for the majority.