• Supreme Court Upholds Affirmative Action Program at University of Texas

    June 23, 2016

    24scotus2_hp-master768WASHINGTON — The Supreme Court on Thursday rejected a challenge to a race-conscious admissions program at the University of Texas, Austin, handing supporters of affirmative action a major victory.

    The vote was 4-3. Only seven justices participated in the decision. Justice Elena Kagan had recused herself for prior work on the case as United States solicitor general and the late Justice Antonin Scalia’s seat remains vacant.

    Justice Anthony M. Kennedy wrote the majority opinion, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor. Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr., dissented.

    The case concerned the University of Texas’s idiosyncratic admissions program. Most applicants from within the state are admitted under a part of the program that guarantees admission to top students in every high school in the state. (This is often called the Top 10 Percent program, though the percentage cutoff can vary by year.)

    “A university is in large part defined by those intangible ‘qualities which are incapable of objective measurement but which make for greatness,’” Justice Kennedy wrote, quoting from a landmark desegregation case. “Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”

    In a lengthy and impassioned dissent from the bench, Justice Alito denounced the court’s affirmative action ruling, saying the university had not demonstrated the need for race-based admissions and saying the program benefitted advantaged students over impoverished ones.

    “This is affirmative action gone berserk,” Justice Alito told his colleagues, adding that what they had done in the case was misguided and “is simply wrong.”

    The Top 10 Percent program has produced significant racial and ethnic diversity. In 2011, for instance, 26 percent of freshmen who enrolled under the program were Hispanic, and 6 percent were black. The population of Texas is about 38 percent Hispanic and 12 percent black.

    The case challenged a second part of the admissions program. Under it, remaining students from Texas and elsewhere are considered under standards that take into account academic achievement and other factors, including race and ethnicity. Many colleges and universities base all of their admissions decisions on such holistic grounds.

    In Grutter v. Bollinger in 2003, the Supreme Court endorsed free-standing admissions programs, saying it was permissible to consider race as one factor among many to achieve educational diversity. Writing for the majority in that case, Justice Sandra Day O’Connor said she expected that “25 years from now,” the “use of racial preferences will no longer be necessary.”

    The case, Fisher v. University of Texas, No. 14-981, was brought by Abigail Fisher, a white woman who said the university had denied her admission based on her race. She has since graduated from Louisiana State University.

    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.

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