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In a 4-3 decision written by Justice Anthony M. Kennedy, the Supreme Court said Thursday that the race-conscious admissions program used by the University of Texas-Austin was lawful under the Equal Protection Clause.
Justice Kennedy wrote that a university ought to be able to decide what “intangible qualities” it needs, adding, “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.”
Considered a major victory for those who advocate using race, among other factors, in college admission decisions, the decision rejected the claim of Abigail Fisher, a white student who argued that UT-Austin had denied her admission in 2008 on the basis of her race, and that the university had no need to use race as a consideration because it had already achieved a “critical mass” using its Top Ten Percent Plan.
Under that plan, Texas students in roughly the top 10 percent of their high school class are guaranteed admission to the Texas public university system. Remaining students, from Texas and elsewhere, are assessed by a variety of factors that include race and ethnicity, which is the section of the policy that Fisher challenged.
Only seven justices voted because the late Justice Antonin Scalia’s seat is still vacant, and Justice Elena Kagan recused herself; she had worked on the Fisher case when she was United States solicitor general.
The 4-3 ruling creates precedent and applies to all public universities and the vast majority of private institutions since most receive federal funding through funding streams like Pell grants.
But the ruling does not give free rein to affirmative action polices, as it notes that the decision “does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admission policies.”
Related: Supreme Courts Justices question when and whether diversity will be achieved
The issue facing the court was not really the specifics of whether Abigail Fisher should have been admitted to the University of Texas at Austin; it was whether it is necessary to use race at all as a factor in admissions to maintain diversity on the campus. Oral arguments also focused on how to define and measure what level of diversity is sufficient.
“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.”
The Supreme Court in past decisions has allowed colleges and universities to consider race in admissions to create a “critical mass” of minority students on campus, although quotas were not permissible. The student population at the UT-Austin currently is 4 percent African-American and 22 percent Latino. And 90 percent of common-size classes have one or fewer African-American students, said the university’s lawyer, Gregory Garre.
The Court’s 2013 decision sent Fisher v. University of Texas back to the U.S. appeals court, which had ruled in the university’s favor, to reexamine the case. In that 7-1 decision, Justice Kennedy wrote that universities bear “the ultimate burden of demonstrating, before turning to racial classifications, that available workable race-neutral alternatives do not suffice.”
Fisher did not qualify for the so-called 10 percent plan, which is how about 75 percent of students are admitted. (UT-Austin has become so competitive that it only admitted the top 8 percent this fall, and that will drop to 7 percent for the fall of 2017.) Her complaint was with the rest of UT-Austin’s admissions process. It takes into account grades, test scores, essays, extra-curricular activities as well as “special circumstances,” which include income level, high school quality, whether English is spoken at home, if a student comes from a single-parent family, and race.
In 2014, 30 percent of those admitted through the 10 percent plan in Texas were Latino, while 7 percent of those admitted through holistic review were Latino, according to Marisa Bono of the Mexican American Legal Defense and Education Fund. The numbers of African-American students were 7 percent and 5 percent respectively.
Related: Supreme Court leaves affirmative action intact, for now
In one of his more controversial comments, Justice Scalia made the claim that most black scientists don’t come from selective universities like UT-Austin but “from lesser schools where they do not feel that they’re being pushed ahead in — in classes that are too fast for them.” He added, “I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.”
Scalia was referencing a theory known as “mismatch,” which argues that polices like affirmative action do a disservice to “underprepared” students, who flounder academically.
A study from the Georgetown University Center on Education and the Workforce released Tuesday argues that the opposite to be true. Examining 468 selective universities, it found that students with average SAT scores (about 1000) had a 77 percent chance of graduating from a selective university – compared to a 51 percent chance at an open-admission college.
Had he lived, Justice Scalia would likely have sided with the dissenters. But a 4-4 decision would still have kept UT-Austin’s policy in place, since a tied decision means the lower court’s ruling stands.
Joining Justice Kennedy in the majority were Justices Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor. Dissenting were Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito and Clarence Thomas.
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