Court calls for tougher scrutiny of affirmative action

Court calls for tougher scrutiny of affirmative action

WASHINGTON — The Supreme Court drew new limits on colleges' use of

affirmative action on Monday, saying that although racial preferences

remain constitutional, they are permissible only if schools can first

show that there are "no workable race-neutral alternatives."



The 7-1 decision written by Justice Anthony Kennedy is likely to

subject schools' affirmative action programs to far tougher scrutiny

in the future because schools will be required to show that they have

no other way to create a diverse student body. The court stopped short

of issuing a broader ruling either cementing or eliminating schools'

ability to take account of an applicant's race when deciding who to

admit.

Instead, Kennedy said that affirmative action remains permissible, but

only if the University of Texas at Austin could prove that there was

"no workable race-neutral alternatives would produce the benefits of

educational diversity."



The justices declined on Monday to decide whether the university's

program met that standard. Instead, they said that a lower federal

court had acted too deferentially by, in essence, taking the

university's word for the fact that such preferences were necessary.

They instructed the lower court to hear the case again, and this time

to require the university to prove that it had no other way to

assemble a diverse student body.



"The University must prove that the means chosen by the University to

attain diversity are narrowly tailored to that goal. On this point,

the University receives no deference," Kennedy wrote.



Kennedy was joined by the court's four conservatives and two of the

court's liberals, justices Stephen Breyer and Sonia Sotomayor. Justice

Ruth Bader Ginsburg wrote a short dissent, saying the lower court

already had enough evidence. Justice Elena Kagan did not participate

in the case.



Justice Clarence Thomas, the court's only African-American judge,

wrote a separate opinion saying that he was prepared to go further and

declare that "use of race in higher education admissions decisions is

categorically prohibited" by the Equal Protection Clause.



A decision calling into question the continued use of race in college

admissions had been widely anticipated in light of the court's ruling

in 2003 narrowly upholding the University of Michigan's use of racial

preferences. At that time, Justice Sandra Day O'Connor said such

programs should be obsolete within 25 years; O'Connor, who had since

left the court, was on hand when Kennedy announced Monday's decision.



A decision calling into question the continued use of race in college

admissions had been widely anticipated in light of the court's ruling

in 2003 narrowly upholding the University of Michigan's use of racial

preferences. At that time, Justice Sandra Day O'Connor said such

programs should be obsolete within 25 years.



Abigail Fisher didn't wait that long. Denied admission to the

University of Texas in 2008, she claimed her only fault was being

white. "I didn't take this sitting down," Fisher said before oral

arguments last October.



"There were people in my class with lower grades who weren't in all

the activities I was in who were being accepted into UT, and the only

other difference between us was the color of our skin," she said in a

video posted by the Project on Fair Representation, a conservative

group that solicited her case. "For an institution of higher learning

to act this way makes no sense to me."



The university's policy was to accept the top 10% of students from

each Texas high school, which because of housing patterns produced a

relatively diverse class. It then filled out its freshman class by

assessing a number of factors including race – a system it said was

devoid of quotas or numerical targets but was designed to achieve what

it called "critical mass."



The school — backed by others that use affirmative action programs to

increase the percentage of minorities gaining admission — argued that

a diverse student body contributes to a well-rounded educational

experience for all.



It was supported by 73 "friend of the court" briefs filed by a broad

array of universities, student groups and athletics coaches, as well

as federal, state and local government officials, business executives

and retired military leaders. They argued that diversity in education

is needed to assure a steady stream of qualified minority applicants

for public service, private enterprise and the armed forces.



Though the court upheld the University of Michigan law school's

affirmative action program in 2003, it struck down the undergraduate

school's program and cautioned that the days of racial preferences

should be numbered. It has since accepted for its next term the state

of Michigan's defense of its constitutional amendment barring racial

preferences in education, employment and contracting.



Since the 2003 decision, the court has taken a turn to the right,

thanks to Justice Samuel Alito replacing Sandra Day O'Connor. By the

time the Texas case was argued in October, five justices were on

record opposing racial preferences.



For that reason, college administrators and civil rights groups feared

that the court could issue a sweeping declaration against such

preferences affecting not only public universities but possibly

private schools, such as Harvard and Yale, that receive federal funds.



The case hearkened back to 1950, when Heman Sweatt sued the university

after being denied admission because he was black. As his attorney,

Sweatt chose Thurgood Marshall, who would go on to become the high

court's first black justice. He won the case, marking the first time

the court had ordered a black student admitted to an all-white

institution.



Since then, colleges and universities have become more integrated. In

Grutter v. Bollinger, the court's 5-4 decision upholding the Michigan

law school's limited use of affirmative action, O'Connor predicted,

"The court expects that 25 years from now, the use of racial

preferences will no longer be necessary to further the interest

approved today."



That case wasn't a slam dunk for the civil rights movement. At the

same time, the court ruled 6-3 against the undergraduate school's more

numerical system of racial preferences. And O'Connor's decision

upholding the law school's racial preferences included a dissent from

Kennedy, now the swing vote on the court.



"Preferment by race, when resorted to by the state, can be the most

divisive of all policies, containing within it the potential to

destroy confidence in the Constitution and in the idea of equality,"

Kennedy said then.



Four years later, in a decision that barred voluntary integration

programs in the Seattle and Louisville public schools, Chief Justice

John Roberts issued one of his most oft-quoted lines: "The way to stop

discrimination on the basis of race is to stop discriminating on the

basis of race."



Two other members of the court were being watched closely in this

case: Justice Thomas, the lone black justice, who has written that his

Yale Law School degree was devalued by racial preferences; and Justice

Sonia Sotomayor, the lone Hispanic, whose recent book, My Beloved

World, credits affirmative action for giving her access to Princeton

and Yale.

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