By David G. Savage and Molly Hennessy-Fiske
The Supreme Court on Thursday upheld the limited use of affirmative action by colleges and universities seeking to enroll more minority students.
The justices, by a 4-3 vote, ruled against a white student who was turned down by the University of Texas and claimed she was a victim of discrimination because race was a factor in the admissions process.
But the court also warned that schools should use affirmative action sparingly.
"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," read the majority opinion by Justice Anthony M. Kennedy. "It is the university's ongoing obligation to engage in constant deliberation and continued reflection regarding its admission policies."
The court's decision is a major victory for affirmative action and something of a surprise, because Kennedy has been a steady critic of race-based admissions policies during his nearly 30-year career.
He dissented in 2003 when the court last upheld college affirmative action, at the University of Michigan. At that time, he faulted the majority for deferring too much to the views of university officials. He said the justices needed to strictly examine admissions policies to make sure schools were not putting too much emphasis on race.
But in Thursday's opinion, Kennedy reversed course somewhat and said the court should give university officials the benefit of the doubt.
"Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission," he wrote in Fisher vs. University of Texas. "But still, it remains an enduring challenge to our nation's education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity."
Thursday's ruling should give comfort to college officials across the nation who consider a student's race or ethnicity in deciding whom to admit. A broad ruling by the high court rejecting affirmative action could have forced those institutions to revise their policies.
But the court's upholding of the University of Texas plan is not likely to have an immediate impact in states, such as California, Michigan or Florida, that have abolished race-based admissions plans though ballot measures or state laws.
Faith Carter, a senior at the University of Texas at Austin, said the high court's ruling was a relief to her and other minority students.
"It makes me proud, it makes me feel there is an effort to support diversity in the university," said Carter 21, of Houston, Texas zone chair of the National Society of Black Engineers.
She noted that recent figures show the college student body is 4 percent African-American, lower than at other large schools.
"Just sending the message that this is lawful, that the Supreme Court did find this lawful, that alone helps" encourage diversity, she said. She added that "there are efforts that need to be pursued to improve the environment at the university" for minority students.
The Texas case was unusual because a state law, known as the Top 10 percent plan, required state university officials to offer admission to Texas high school students who graduated with top grades at their individual schools.
This race-neutral policy opened the door for more Latino and black students to enroll at the Austin campus. But university officials said these gains were not sufficient. They said they wanted to admit some talented minority students who had gone to top-quality, mostly white high schools but were not in the top 10 percent of their classes. They said a limited use of affirmative action could be used to admit several dozen minority students each year who would likely do well at the Austin campus.
But this in turn triggered a lawsuit by Edward Blum, a retired stock broker and UT graduate who said the university had no legal basis for evaluating applicants based on their race. He enlisted as a plaintiff Abigail Fisher, who was turned down by UT in 2008 and objected to the race-based aspect of the admissions policy.
The issue of affirmative action has closely split the justices for decades, going back to the Bakke decision of 1978. Then, the court in an unusual 5-4 split, struck down a University of California affirmative action policy but said that colleges may consider a student's race as a "plus factor."
The 2003 decision in the Michigan case repeated that view, again in a 5-4 opinion written by Justice Sandra Day O'Connor. But after O'Connor retired and was replaced by the more conservative Justice Samuel A Alito Jr., university officials worried that the high court was poised to strike down affirmative action entirely.
Joining Kennedy's 20-page opinion in full were liberal Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor. Justice Elena Kagan recused herself from the case because she had filed an early brief in support of the university when she was the U.S. solicitor general.
Alito wrote a 51-page dissent and read much of it in the court. "Something strange has happened since our prior decision in this case," he said. He was referring to the court's action on the same case three years ago, when a skeptical majority sent the issue back to a lower court for more review.
Alito said the university should have been required to show its affirmative action policy was needed to achieve diversity and was "narrowly tailored" to that goal.
He faulted Kennedy for deferring to university officials, particularly after Kennedy had suggested in the earlier decision that the court would demand stricter proof of the need for such a program.
Alito also questioned why the Austin campus seeks out more privileged minority students in top high schools. "This argument turns affirmative action on its head," he said. "Affirmative action programs were created to help disadvantaged students."
Speaking in the court, Alito said it was not clear whether this was a "one-off" decision that will have no lasting impact or the beginning of a significant shift in favor of affirmative action. That will only become clear, he said, when the next case comes along.
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