Court Calls for Tougher Scrutiny of Affirmative Action

10:15 AM, Jun 24, 2013   |    comments
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Richard Wolf, USA TODAY

WASHINGTON - The Supreme Court on Monday said colleges' affirmative action plans are constitutional only if such racial preferences are the only way to achieve diversity on campuses, a decision likely to subject such programs to far more scrutiny in the future.

The 7-1 decision was written by Justice Anthony Kennedy, considered the crucial swing vote on the court, particularly on issues involving race. Kennedy said the University of Texas at Austin's affirmative action plan could withstand constitutional scrutiny only if the university could prove that "no workable race-neutral alternatives would produce the educational benefits of diversity."

But the justices on Monday declined to answer that question. Instead, they said that a lower federal court had failed to ask the question in the first place, and sent the case back with instructions to determine whether the university could come up with evidence to meet that exacting new standard.

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 Clarence 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.

Justice Elena Kagan recused herself from the case, presumably because she was involved with it during her tenure as solicitor general at the Justice Department in 2009-10.

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