Supreme Court kicks Texas affirmative action case back to lower courts

Published: Monday, June 24 2013 10:46 a.m. MDT

People wait outside the Supreme Court in Washington as key decisions are expected to be announced Monday, June 24, 2013.

J. Scott Applewhite, Associated Press

In a 7-1 decision, the U.S. Supreme Court on Monday remanded a challenge to the University of Texas' affirmative action admissions policy to lower courts to reconsider, holding that the district court had erred in not applying "strict scrutiny" as required by earlier precedent.

Justice Anthony Kennedy's decision held that the “reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”

Justice Ruth Bader Ginsburg filed the lone dissent, and Justice Elena Kagan recused herself, due to earlier contact with the case in the Obama administration before joining the Court.

The University of Texas adopted a policy by which any student graduating in the top 10 percent of his or her class is automatically accepted. This followed a 1996 appeals court decision that scaled back affirmative action in that jurisdiction.

"While the top-10 percent plan vastly expanded the number of Texas high schools sending graduates to the state's flagship campus," The Wall Street Journal notes, "UT administrators frowned at having to accept applicants from less competitive high schools, whose top students often had lower test scores and poorer academic preparation than middle-tier students from leading suburban high schools that traditionally served as the university's principal feeders."

But in 2003 the Supreme Court split 5-4 to sustain an affirmative action policy by the University of Michigan Law School. The University of Texas seized this opening to supplement its 10 percent policy with targeted preferences for black and Hispanic students from more competitive schools that would otherwise not be accepted.

A caucasian female high school student challenged this race preference in 2008 after being denied entrance to UT.

The Fisher decision orders the lower court to apply "strict scrutiny" in the Texas case, asking hard questions about alternatives to race preferences, rather than simply assuming that the state had wide latitude.

In sending the case back for a fresh look, a few justices indicated they would take a skeptical view down the road. Justice Antonin Scalia wrote that he would prefer to overturn Grutter v. Bollinger, the 2003 decision supporting affirmative action.

Eric Schulzke writes on national politics for the Deseret News. He can be contacted at eschulzke@desnews.com.

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