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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