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College affirmative action survives in Supreme Court ruling

Published June 24, 2013 11:55 am

Supreme Court • In a 7-1 decision, justices say Texas admission plan requires further scrutiny.
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The Supreme Court struck a compromise in its first test of university affirmative action in a decade, telling a federal appeals court to give tougher scrutiny to a University of Texas admissions program.

In a 7-1 ruling, the court left intact a 2003 decision that reaffirmed the right of universities to use race as an admissions factor. The majority instead said a federal appeals court hadn't properly applied the standards laid out in the 2003 ruling. Justice Ruth Bader Ginsburg dissented.

Monday's decision gives a limited victory to opponents of racial preferences by requiring tougher court review. The majority said universities must prove that their means of attaining diversity meet a demanding constitutional test known as "strict scrutiny."

"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," Justice Anthony Kennedy wrote for the majority.

Affirmative action has been a fixture on U.S. campuses since the 1960s, diversifying what had been many virtually all- white student bodies. Most of the nation's selective colleges and professional schools consider race as they seek to ensure a multiracial student body. Blacks and Hispanics now make up more than a quarter of U.S. college students.

The case isn't expected to have much of an effect in Utah. None of state's public higher education institutions —most of which are open enrollment —use affirmative action in admissions, said Pam Silberman, spokeswoman for the Utah System of Higher education. Though the University of Utah's new holistic admissions process, started this year, takes "background, culture, and heritage," into account, it doesn't specifically include race as a factor, according to a U. statement on the process. It remains to be seen how the ruling could affect private schools.

In a concurring opinion, Justice Clarence Thomas said he would have outlawed the use of race by university admissions offices.

Ginsburg wrote in dissent that government actors, including state universities, need not be blind to the lingering effects of "an overtly discriminatory past."

At the core of the debate in the Texas case was whether universities can adequately diversify without resorting to racial preferences. Texas admits three-quarters of its freshman class each year on the basis of high school class rank - the "top 10 percent" rule. That system, while race-neutral on the surface, ensures a significant number of minorities because it guarantees slots to students at predominantly Hispanic and black schools.

The university considers race only in admitting the rest of the class. Opponents of preferences say that's unnecessary, given the success of the class-rank method. Texas counters that even with race-based admissions, a high percentage of its classes have few if any black and Hispanic students.

The 2003 decision, Grutter v. Bollinger, said colleges and graduate schools could consider race as long as they do so through a broad review of a student's application and don't mechanistically award extra points to every minority. The author of that 5-4 ruling, Sandra Day O'Connor, retired in 2006.

Columbia University President Lee Bollinger, who was involved in the 2003 case, said before today's ruling that a decision barring affirmative action would undermine the ability of universities to ensure integrated student bodies.

"The integration would not stop completely, but it would fall very significantly," Bollinger said on Bloomberg Radio. "If the Supreme Court were to overrule this, it would upset 50 years of very important and serious work to help realize Brown v. Board of Education," the landmark 1954 school integration case.

The Texas policy was challenged by Abigail Noel Fisher, who applied unsuccessfully to the school in 2008 and later enrolled at Louisiana State University. A graduate of a Houston-area public high school, she said she was passed over by UT in favor of minority classmates with lower grades and fewer extracurricular activities.

Texas had support in the case from some of the nation's most powerful institutions. Fifty-nine companies - including Microsoft Corp., Wal-Mart Stores Inc., Gap Inc., General Electric Co., Pfizer Inc., Shell Oil Co. and Viacom Inc. - filed a brief saying they rely on universities to prepare a racially diverse work force.

Those corporations were in the unusual position of arguing alongside the Obama administration, which cast affirmative action as a national security issue. The administration said race-conscious admissions, at the country's military academies and at universities with Reserve Officer Training Corps programs, help ensure a diverse officer corps.

Texas argued that its program is a model of the type of plan the high court approved in the Grutter ruling.

Justice Elena Kagan didn't take part in the case. She was the Obama administration's top courtroom lawyer when the administration filed a brief at the appeals court level.

— With assistance from Bob Drummond in Washington.






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