WASHINGTON (USA TODAY) 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.
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.
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.
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.
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.
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
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."
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."
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.
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.