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Affirmative Action Lives To See Another Day At The Supreme Court

WASHINGTON -- In a victory for diversity in higher education, a hamstrung Supreme Court narrowly upheld the affirmative action program at the University of Texas at Austin, effectively allowing the school to keep using race as one of many factors in its admissions process.

Justice Anthony Kennedy -- joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor -- ruled for a 4-3 majority that the university program does not violate the Constitution's guarantee of equal protection of the laws.

"The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement," Kennedy wrote. "It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies."

The case, Fisher v. University of Texas, was one of the oldest cases left undecided on the court's current docket -- and one of a handful where the late Justice Antonin Scalia could have been instrumental in the final outcome.


After oral arguments in December, there was little doubt where the court's conservatives stood on the case, with Chief Justice John Roberts pondering out loud when the consideration of race in college admissions "is going to be done." 

But the most dramatic moment in the hearing came from Scalia himself, who suggested that affirmative action is not beneficial at all to black students who may not be up to the task of high-performing schools.

“There are those who contend that it does not benefit African-Americans to get them into the University of Texas, where they do not do well,” Scalia said, “as opposed to having them go to a less-advanced school ... a slower-track school where they do well.” His comment drew audible gasps inside the courtroom.

Regardless of how the court might have voted to rule in the case before Scalia's death, it had to scrap its decision and start again, this time with only seven justices, since Justice Elena Kagan had recused herself given her prior role in defending affirmative action as the Obama administration's top appellate lawyer.

This might explain the narrow ruling in Fisher -- a sign of compromise in light of the court's current makeup.

At the center of the yearslong battle over the constitutionality of affirmative action was Abigail Fisher, a white woman who sued UT after she was denied admission under the school's Top 10 Percent rule, a "race-neutral" mechanism that automatically grants admission to top-performing high school students across Texas.

Because Fisher didn't meet that threshold, under which about 75 percent of UT's incoming freshman class is awarded a spot, she challenged the school's "holistic" admissions plan, which selects the remainder of the applicant pool by looking at a snapshot of a student's whole file for admissions determinations.

One of the factors in that snapshot is race, which Fisher -- with the help of conservative legal activist Edward Blum -- claimed was an unconstitutional consideration to make because it deprives her of equal protection under the law.

This is a developing story. Please check back for updates.

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