The 7-to-1 decision avoided giving a direct answer about the constitutionality of the program, from the University of Texas at Austin, which will allow it to continue for now. But the justices ordered an appeals court to reconsider the case under a demanding standard that appears to jeopardize the program.
The ruling was simultaneously modest and significant, and its recalibration of how courts review the constitutionality of race-conscious decisions by the government will reverberate beyond higher education.
The brief decision, issued eight months after the case was argued, was almost surely the product of intense negotiation among the justices.
The compromise that the majority reached was at least a reprieve for affirmative action in higher education, and civil rights groups that had feared for the future of race-conscious admission programs were relieved. But conservatives and other opponents of the current version of affirmative action vowed to use the court’s ruling as a road map to bring future cases.
Justice Anthony M. Kennedy wrote the majority opinion, joined by the four members of the court’s conservative wing — Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — and two of its liberals, Justices Stephen G. Breyer and Sonia Sotomayor.
Only Justice Ruth Bader Ginsburg dissented, writing that lower courts were correct to uphold the Texas program. Justice Elena Kagan disqualified herself from the case, presumably because she had worked on it as solicitor general in the Obama administration.
The decision did not disturb the Supreme Court’s general approach to affirmative action in admissions decisions, saying that educational diversity is an interest sufficient to overcome the general ban on racial classifications by the government. But the court added that public institutions must have good reasons for the particular methods they use to achieve that goal.
Colleges and universities, Justice Kennedy wrote for the majority, must demonstrate that “available, workable race-neutral alternatives do not suffice” before taking account of race in admissions decisions.
That requirement could endanger the Texas program when it is reconsidered by the United States Court of Appeals for the Fifth Circuit in New Orleans. The university’s program admits most undergraduates under race-neutral criteria, accepting all Texas students who graduate near the top of their high school classes. But the university also uses a race-conscious system to choose the remaining students.
Courts reviewing government programs that make distinctions based on race subject them to a form of judicial review known as “strict scrutiny,” requiring the government to identify a compelling interest and a close fit between means and ends. Justice Kennedy’s opinion focused on and tightened the second part of the test.
“Strict scrutiny,” Justice Kennedy wrote, “does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice.”
Courts reviewing affirmative action programs must, he wrote, “verify that it is necessary for a university to use race to achieve the educational benefits of diversity.” That requires, he said, “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.”
Justice Ginsburg, who announced her dissent from the bench, said the race-neutral part of the Texas program worked only because of “de facto racial segregation in Texas’ neighborhoods and schools.”
The case, Fisher v. University of Texas, No. 11-345, arose from a lawsuit filed by a white woman, Abigail Fisher, who said the university had denied her admission based on her race.
In a statement issued Monday, Ms. Fisher said she was “grateful to the justices for moving the nation closer to the day when a student’s race isn’t used at all in college admissions.”
This article has been revised to reflect the following correction:
Correction: June 24, 2013
An earlier Web address and page title misstated the Supreme Court’s ruling. As the headline correctly noted, the justices sent the case back to a lower court.
Source Article from http://www.nytimes.com/2013/06/25/us/affirmative-action-decision.html