SCOTUS sends affirmative action back to lower courts

The University of Texas’ affirmative action program technically lost at the Supreme Court today, but it’s tough to make a lot out of the decision, because the Supremes basically handed the case back to the 5th Circuit Court of Appeals and told them to ponder it at greater length.  Many critics of affirmative action hoped today’s ruling would eliminate race-based admissions across the land, but that isn’t what happened.

The 5th Circuit had ruled in favor of the University of Texas admissions plan, which was under challenge by a white woman named Abigail Fisher, who claimed she was denied admission to the university based on her race.  The New York Times summarizes the case:

The admissions system Ms. Fisher challenged is idiosyncratic. Three-quarters of applicants from Texas are admitted under a program that guarantees admission to the top students in every high school in the state. (Almost everyone calls this the Top 10 program, though the percentage cutoff can vary by year. Ms. Fisher just missed the cutoff.)

The remaining Texas students and those from elsewhere are considered under standards that take account of academic achievement and other factors, including race and ethnicity.

The Top 10 program has produced significant racial and ethnic diversity. In recent years, about 25 percent of freshmen who enrolled under the program were Hispanic, and 6 percent were black. Thirty-eight percent of Texans are Hispanic, and 12 percent are black.

Ms. Fisher argued that Texas could not have it both ways. Having put in place a race-neutral program to increase minority admissions, she said, Texas should not supplement it with a race-conscious one.

Texas officials said that the additional effort was needed to make sure that individual classrooms contained a ???critical mass??? of minority students.

The Associated Press notes that once the “Top 10” program (currently admitting the top 8 percent of high school graduates) has filled up about 75 percent of the slots, “race is a factor in filling out the rest of the incoming class.”  The practical result is that “more than 8 in 10 African-American and Latino students who enrolled at the flagship campus in Austin in 2011 were automatically admitted, according to university statistics.”

In all, black and Hispanic students made up more than a quarter of the incoming freshmen class. White students constituted less than half the entering class when students with Asian backgrounds and other minorities were added in.

The university said the extra measure of diversity it gets from the slots outside automatic admission is crucial because too many of its classrooms have only token minority representation, at best. At the same time, Texas argued that race is one of many factors considered and that whether race played the key role in any applicant???s case was impossible to tell.

After a journey that took her all the way to the Supreme Court, Fisher is basically back where she started.  It’s still acceptable for universities to consider race as one of several criteria for admissions, but not the sole or primary factor.  There’s a general admonition that universities should think long and hard before using race-based admissions policies to achieve “diversity” in the student body.  This could ultimately spell trouble for the University of Texas program, if the further scrutiny required of the 5th Circuit Court of Appeals prompts it to reverse its earlier decision.  As Justice Anthony Kennedy wrote for the 7-1 majority:

Strict scrutiny must not be strict in theory but feeble in fact. In order for judicial review to be meaningful, a university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that ???encompasses a . . . broa[d] array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.??? Bakke, 438 U. S., at 315 (opinion of Powell, J.).

It was a 7-1 decision because Justice Elena Kagan recused herself, for exactly the same reason she should have recused herself from the ObamaCare decision, but did not: she did work relating to the case when she was with the Justice Department.

In his lengthy concurring opinion, Justice Clarence Thomas expressed great skepticism that the quest for diversity is sufficient justification for racial discrimination.  “While I find the theory advanced by the University to justify racial discrimination facially inadequate,” Thomas wrote, “I also believe that its use of race has little to do with the alleged educational benefits of diversity. I suspect that the University???s program is instead based on the benighted notion that it is possible to tell when discrimination helps, rather than hurts, racial minorities.”

Thomas also noted that “racial engineering does in fact have insidious consequences… There can be no doubt that the University???s discrimination injures white and Asian applicants who are denied admission because of their race.  But I believe the injury to those admitted under the University???s discriminatory admissions program is even more harmful.”  He went on to review the difficulties faced by students admitted to the University based on benign racial discrimination, quoting the work of Thomas Sowell on the “shifting effect” that pulls unprepared students away from “less selective colleges where they would have been more evenly matched.”

Justice Thomas nevertheless joined the majority “because the Court correctly concludes that the Court of Appeals did not apply strict scrutiny.”  The lone dissenter was Justice Ruth Bader Ginsburg, who remains strongly in favor of race-based admissions as a remedy for “an overtly discriminatory past,” thinks “only an ostrich could regard the supposedly neutral alternatives as race unconscious,” and was completely satisfied with the level of scrutiny the 5th Circuit gave to the case, so she would have upheld their decision.