Texas U. admissions can consider race, Supreme Court rules

WASHINGTON — In a narrow victory for affirmative action, the Supreme Court on Thursday upheld a University of Texas program that takes account of race in deciding whom to admit, an important national decision that was cemented by the death of Justice Antonin Scalia.

The justices' 4-3 decision in favor of the Texas program ends an 8-year-old lawsuit that included a previous trip to the Supreme Court, filed by a white Texan who was denied admission to the university.

Justice Anthony Kennedy said in his majority opinion that the Texas plan complied with earlier court rulings that allow colleges to consider race in pursuit of diversity on campus. "The university has thus met its burden of showing that the admissions policy it used ... was narrowly tailored," Kennedy wrote.

The court's three more-conservative justices dissented, and Justice Samuel Alito read portions of his 51-page dissent, more than twice as long as Kennedy's opinion, from the bench.

"This is affirmative action gone wild," Alito said. The university "relies on a series of unsupported and noxious racial assumptions."

In a separate dissent, Justice Clarence Thomas repeated his view that the Constitution outlaws any use of race in higher education admissions.

With the death of Scalia in February and with Justice Elena Kagan sitting out the case because she worked on it while serving in the Justice Department, just seven justices participated in the decision.

Scalia, long opposed to affirmative action, almost certainly would have voted with his fellow conservatives. He was criticized for suggesting at arguments in December that some black students would benefit from being at a "slower-track school," instead of Texas' flagship campus in Austin.

At the very least, Scalia's vote could have made the result a tie and limited the high court to issuing a one-sentence opinion upholding the lower court ruling in favor of Texas. In that instance, the result would have been the same but without the Supreme Court endorsement offered by Kennedy Thursday.

The university considers race among many factors in admitting the last quarter of incoming freshmen classes. The state fills most of its freshman class by guaranteeing admission to students who graduate in the top 10 percent of their Texas high school class.

The high court ruled in the case of Abigail Fisher, a white Texan who was denied admission to the university in 2008. She contended she was rejected while African-American applicants with lower grades and test scores were admitted.

The school said Fisher, who did not graduate in the top 10 percent of her class, would not have been admitted with or without race as a factor. But officials did conditionally offer to allow her to transfer in as a sophomore if she maintained a 3.2 grade-point average at another public college in Texas.

Instead, she went to Louisiana State University, from which she graduated in 2012, and pursued her lawsuit. Fisher was recruited for the suit by Edward Blum, an opponent of racial preferences who has been remarkably successful in persuading the Supreme Court to hear cases challenging the use of race in education and politics.

Blum was behind a major challenge to the landmark Voting Rights Act that resulted in the court eviscerating a key provision of the law, and he also led an unsuccessful challenge to states' widespread practice of counting all their residents, not just those eligible to vote, in drawing legislative districts.

The Supreme Court heard Fisher's case once before and issued an inconclusive ruling in 2013 that sent it back to a lower court and set the stage for Thursday's decision.

In 2003, the justices reaffirmed the consideration of race in the quest for diversity on campus. Their decision then set a goal of doing away with such programs in 25 years.

"The most important part of this case is that the court reaffirmed what it said in 2003 which is that diversity can be a compelling interest of a university in fulfilling its educational mission," said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund.

In a statement, Fisher said "I am disappointed that the Supreme Court has ruled that students applying to the University of Texas can be treated differently because of their race or ethnicity. I hope that the nation will one day move beyond affirmative action."

Separate legal challenges have been filed to affirmative action plans at the University of North Carolina and Harvard University. Vanderbilt University law professor Suzanna Sherry said the outcome of the Texas case "makes the universities' cases a lot stronger. The challengers have an uphill battle."

Texas is unique in marrying the top-10 plan to a separate admissions review in which race is one of many factors considered. The university's current freshman class is 22 percent Hispanic and 4.5 percent African-American. White students make up less than half the school's freshmen.

Eight states prohibit the use of race in public college admissions: Arizona, California, Florida, Michigan, Nebraska, New Hampshire, Oklahoma and Washington.

Kennedy noted the long duration of Fisher's lawsuit in rejecting calls to send the case back to lower courts again. Alito complained the court should not side with Texas "because it is tired of this case."