Justices Send Texas Affirmative Action Case Back for Next Round

     WASHINGTON (CN) – A race-conscious undergraduate admissions program at the University of Texas at Austin has not yet fought off discrimination claims, the Supreme Court ruled Monday.
     Under the Top 10 Percent Law, which Texas enacted in 1997 to boost minority enrollment, local high school students in the top 10 percent of their senior class received automatic admission to state universities. After assessing its minority representation in 2004, however, University of Texas schools began including race as a factor when considering applications of in-state students who would not be eligible for admission under the Top 10 Percent Law.
     If a student is ineligible to a Texas state school under the Top 10 Percent Law and does not qualify by academic variables alone, schools can consider the submitted essays and a personal achievement score based on seven “special circumstances,” including race and socioeconomic status.
     The University of Texas adopted the race-conscious undergraduate admissions program with attention to the 2003 Supreme Court ruling Grutter v. Bollinger, regarding the admissions process at the University of Michigan Law School.
     Abigail Fisher and Rachel Michalewicz, who were denied admission to the University of Texas in fall 2008, challenged the constitutionality of the admissions process. They claimed the race-conscious program was discriminatory and violated the 14th Amendment, but they did not challenge the Top 10 Percent Law.
     A federal judge in Texas had dismissed the lawsuit, and the New Orleans-based 5th Circuit affirmed in January.
     Six months later, the full court voted 9-7 against rehearing the case.
     Fisher alone petitioned the Supreme Court for certiorari and emerged victorious Monday when a seven-justice majority vacated dismissal.
     In addition to the Grutter decision, the justices cited the 1978 case Regents of University of California v. Bakke.
     Both of those cases showed required the 5th Circuit to hold the university “to the demanding burden of strict scrutiny, according to the ruling.
     “Because the Court of Appeals did not apply the correct standard of strict scrutiny, its decision affirming the District Court’s grant of summary judgment to the university was incorrect,” Justice Anthony Kennedy wrote for the majority. “That decision is vacated, and the case is remanded for further proceedings.”
     After a court determines whether a school’s “goal of di­versity is consistent with strict scrutiny … there must still be a further judicial determination that the admissions process meets strict scrutiny in its implemen­tation,” according to the ruling.
     “The university must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal,” Kennedy wrote. “On this point, the university receives no deference.”
     “A plaintiff, of course, bears the burden of placing the validity of a university’s adoption of an affirmative action plan in issue,” Kennedy added. “But strict scrutiny imposes on the univer­sity the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.”
     On this point, the 5th Circuit failed to require such proof. It limited Fisher to show only that “whether [the university’s] decision to reintroduce race as a factor in admissions was made in good faith,” according to the ruling.
     On remand, the appellate court must determine whether the school “has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity,” Kennedy added.
     Justice Elena Kagan did not participate in the court’s consideration of the case.
     Kennedy was joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Stephen Breyer, Samuel Alito and Sonia Sotomayor.
     Scalia meanwhile used a brief concurring opinion to note his belief that “state-provided education” is not an area exempt from the constitutional prohibition of government discrimination on the basis of race.
     Though the justice had voiced this opinion in a partially dissenting opinion to Grutter, Fisher did not ask the court to overrule Grutter so Scalia joined the majority in full.
     Justice Thomas likewise said he would have overruled Grutter if that issue had been before the court.
     “The worst forms of racial discrimination in this nation have always been accompanied by straight-faced representations that discrimination helped minorities,” Thomas wrote.
     “The university’s professed good intentions can­not excuse its outright racial discrimination any more than such intentions justified the now denounced argu­ments of slaveholders and segregationists,” he added.
     In a lone dissent, Justice Ruth Bader Ginsburg said the court should have affirmed dismissal.
     “I have several times explained why government actors, including state universities, need not be blind to the lin­gering effects of ‘an overtly discriminatory past,’ the legacy of ‘centuries of law-sanctioned inequality,'” Ginsburg wrote. “Among constitutionally permissible options, I remain convinced, ‘those that candidly disclose their consideration of race [are] preferable to those that conceal it.’
     “Accordingly, I would not return this case for a second look. As the thorough opinions below show, the university’s admis­sions policy flexibly considers race only as a ‘factor of a factor of a factor of a factor’ in the calculus, followed a yearlong review through which the university reached the reasonable, good-faith judgment that suppos­edly race-neutral initiatives were insufficient to achieve, in appropriate measure, the educational benefits of student­ body diversity, and is subject to periodic review to ensure that the consideration of race remains necessary and proper to achieve the university’s educational objectives.”
     Insisting that the 5th Circuit already assessed the tailoring issue, Ginsburg said the court should have affirmed.

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