[h=3]By JESS BRAVIN And BRENT KENDALL[/h]The Supreme Court avoided a sweeping ruling on affirmative action in a closely watched case involving the University of Texas, sending the case back to a lower court for a new review.
The court's ruling on Fisher v. University of Texas was 7-1, with the majority opinion by Justice Anthony Kennedy. Justice Ruth Bader Ginsburg dissented, and Justice Elena Kagan, who was solicitor general when the Obama administration weighed in on the case, recused herself from the decision.
Justice Kennedy said the Fifth Circuit U.S. Court of Appeals made legal errors when it upheld the university program. The lower court should have scrutinized the university program more strictly, Justice Kennedy said.
The justices were ruling on the case of Abigail Fisher, who alleged the university rejected her because she is white.
Justice Kennedy said the Supreme Court wants the lower court to hear the case again "so that the admissions process can be considered and judged under a correct analysis."
UT gives automatic entry to any Texas student who graduates in roughly the top 10% of his or her high-school class. That program was designed to maintain ethnic and racial diversity after a 1996 federal-appeals-court ruling restricted affirmative action in Texas and nearby states.
But after 2003, when the Supreme Court voted 5-4 to reinstate affirmative action, UT quickly supplemented its top-10% plan with an additional admissions pathway that allowed consideration of race and other factors beyond grades and test scores. UT said that pathway was designed for middle- or upper-class children of African-American and Hispanic professionals who attend more competitive schools.
While the top-10% plan vastly expanded the number of Texas high schools sending graduates to the state's flagship campus, UT administrators frowned at having to accept applicants from less competitive high schools, whose top students often had lower test scores and poorer academic preparation than middle-tier students from leading suburban high schools that traditionally served as the university's principal feeders.
The university said the presence of better-off minority students could help dispel stereotypes that could be perpetuated by the presence of those admitted through the top-10% program.
That stance drew harsh questioning from the Supreme Court's conservative wing at arguments last October.
"I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don't think I've ever seen before," said Justice Samuel Alito.
When UT's lawyer, Gregory Garre, attempted to explain the admissions formula as a "holistic" review of individual attributes, Justice Kennedy heard something else.
"So what you're saying is that what counts is race above all," said Justice Kennedy, considered a swing vote on affirmative action. "You want underprivileged of a certain race and privileged of a certain race. So that's race."
Other state universities, such as the University of North Carolina at Chapel Hill, said that using a race-blind top-10% plan could actually increase racial diversity on campus, but at the unacceptable price of admitting less-qualified applicants who would lower the institution's national ranking.
Ms. Fisher, the white student who sued UT, was recruited by lawyer Edward Blum, an activist opposed to affirmative action and other race-conscious government policies. Her suit alleged that the admissions formula violated her 14th Amendment right to "equal protection of the laws."
A federal district court and the Fifth Circuit disagreed, finding that the UT system met the standards established by the Supreme Court's 2003 decision, Grutter v. Bollinger, which suggested that race-conscious admissions practices might be justifiable for another quarter-century.
Since 2003, the Supreme Court's composition shifted to the right on matters of race, when Justice Sandra Day O'Connor, author of the Grutter decision, retired and was succeeded by Justice Alito, who has shown far greater skepticism toward race-conscious polices.
At the arguments last year, liberal justices seemed frustrated that so recent a ruling was being reconsidered.
"Grutter said it would be good law for at least 25 years, and I know that time flies, but I think only nine of those years have passed," said Justice Stephen Breyer. "Why overrule a case into which so much thought and effort went and so many people across the country have depended on?"
Although Ms. Fisher's lawyers contended that the UT policy violated even the 2003 Grutter precedent, all sides saw the case as intended to end affirmative action outright.
The Obama administration backed UT, arguing that affirmative action was important for several official objectives, particularly in the military. The Pentagon said ethnic and racial diversity of the enlisted force was necessary to foster morale and retain discipline in the ranks.
For most of its history, the University of Texas, like Texas itself, was segregated by law. A 1950 Supreme Court ruling forced UT to admit an African-American to its law school, paving the way for the 1954 Brown v. Board of Education decision holding segregated schools unconstitutional. Even so, UT didn't agree to accept black undergraduates until 1956, and it continued to operate whites-only dormitories into the 1960s.
After she was rejected by UT's flagship Austin campus, Ms. Fisher had the option of attending another UT campus and transferring after one year to Austin if she performed adequately. She chose instead to attend Louisiana State University, across the state line in Baton Rouge. She has since graduated and moved to Austin.
Write to Jess Bravin at [email protected] and Brent Kendall at [email protected]
The court's ruling on Fisher v. University of Texas was 7-1, with the majority opinion by Justice Anthony Kennedy. Justice Ruth Bader Ginsburg dissented, and Justice Elena Kagan, who was solicitor general when the Obama administration weighed in on the case, recused herself from the decision.
Justice Kennedy said the Fifth Circuit U.S. Court of Appeals made legal errors when it upheld the university program. The lower court should have scrutinized the university program more strictly, Justice Kennedy said.
The justices were ruling on the case of Abigail Fisher, who alleged the university rejected her because she is white.
Justice Kennedy said the Supreme Court wants the lower court to hear the case again "so that the admissions process can be considered and judged under a correct analysis."
UT gives automatic entry to any Texas student who graduates in roughly the top 10% of his or her high-school class. That program was designed to maintain ethnic and racial diversity after a 1996 federal-appeals-court ruling restricted affirmative action in Texas and nearby states.
But after 2003, when the Supreme Court voted 5-4 to reinstate affirmative action, UT quickly supplemented its top-10% plan with an additional admissions pathway that allowed consideration of race and other factors beyond grades and test scores. UT said that pathway was designed for middle- or upper-class children of African-American and Hispanic professionals who attend more competitive schools.
While the top-10% plan vastly expanded the number of Texas high schools sending graduates to the state's flagship campus, UT administrators frowned at having to accept applicants from less competitive high schools, whose top students often had lower test scores and poorer academic preparation than middle-tier students from leading suburban high schools that traditionally served as the university's principal feeders.
The university said the presence of better-off minority students could help dispel stereotypes that could be perpetuated by the presence of those admitted through the top-10% program.
That stance drew harsh questioning from the Supreme Court's conservative wing at arguments last October.
"I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don't think I've ever seen before," said Justice Samuel Alito.
When UT's lawyer, Gregory Garre, attempted to explain the admissions formula as a "holistic" review of individual attributes, Justice Kennedy heard something else.
"So what you're saying is that what counts is race above all," said Justice Kennedy, considered a swing vote on affirmative action. "You want underprivileged of a certain race and privileged of a certain race. So that's race."
Other state universities, such as the University of North Carolina at Chapel Hill, said that using a race-blind top-10% plan could actually increase racial diversity on campus, but at the unacceptable price of admitting less-qualified applicants who would lower the institution's national ranking.
Ms. Fisher, the white student who sued UT, was recruited by lawyer Edward Blum, an activist opposed to affirmative action and other race-conscious government policies. Her suit alleged that the admissions formula violated her 14th Amendment right to "equal protection of the laws."
A federal district court and the Fifth Circuit disagreed, finding that the UT system met the standards established by the Supreme Court's 2003 decision, Grutter v. Bollinger, which suggested that race-conscious admissions practices might be justifiable for another quarter-century.
Since 2003, the Supreme Court's composition shifted to the right on matters of race, when Justice Sandra Day O'Connor, author of the Grutter decision, retired and was succeeded by Justice Alito, who has shown far greater skepticism toward race-conscious polices.
At the arguments last year, liberal justices seemed frustrated that so recent a ruling was being reconsidered.
"Grutter said it would be good law for at least 25 years, and I know that time flies, but I think only nine of those years have passed," said Justice Stephen Breyer. "Why overrule a case into which so much thought and effort went and so many people across the country have depended on?"
Although Ms. Fisher's lawyers contended that the UT policy violated even the 2003 Grutter precedent, all sides saw the case as intended to end affirmative action outright.
The Obama administration backed UT, arguing that affirmative action was important for several official objectives, particularly in the military. The Pentagon said ethnic and racial diversity of the enlisted force was necessary to foster morale and retain discipline in the ranks.
For most of its history, the University of Texas, like Texas itself, was segregated by law. A 1950 Supreme Court ruling forced UT to admit an African-American to its law school, paving the way for the 1954 Brown v. Board of Education decision holding segregated schools unconstitutional. Even so, UT didn't agree to accept black undergraduates until 1956, and it continued to operate whites-only dormitories into the 1960s.
After she was rejected by UT's flagship Austin campus, Ms. Fisher had the option of attending another UT campus and transferring after one year to Austin if she performed adequately. She chose instead to attend Louisiana State University, across the state line in Baton Rouge. She has since graduated and moved to Austin.
Write to Jess Bravin at [email protected] and Brent Kendall at [email protected]