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The Supreme Court released an anti-climatic ruling in what might have been a major decision about the use of race in higher education admissions on Monday. In its decision, the court sent the case back to the Fifth Circuit with instructions for the lower court to re-examine how the University of Texas (UT) uses race in its admission system.

The 7-1 decision—which does not appear to have any immediate wider, national implications—is no doubt provoking some sighs of relief among university presidents and admissions officers around the country who have staunchly defended the use of race in their admissions systems.

Affirmative action case
Minority students at the University of Texas-Austin have higher graduation rates than at less-selective institutions, but the rates are still lower than for white students. (photo by Sarah Garland)

The lower court did not use “strict scrutiny,” a term used by the courts when constitutional rights are abridged, to examine whether the university’s use of race was justifiable. Rather, the Fifth Circuit deferred to the judgment of the school. When a court uses strict scrutiny to examine a situation where race is used, it must find that the institution uses a plan that has “compelling interest” and is “narrowly tailored,” meaning, essentially, that it is sufficiently focused on the goal at hand: increasing diversity in the student body.

Justice Anthony Kennedy, generally seen as the often right-leaning swing vote on many issues that face the court, including race, wrote the short opinion. “Under Grutter, Strict scrutiny must be applied to any admissions program using racial categories or classifications,” Kennedy wrote, referring to a case in 2003–the last time the court ruled on affirmative action.

The plaintiff was a white student, Abigail Fisher, who was denied admittance to UT in 2008. She was part of a small section of the student body who are not admitted to the university under a race-blind system in which the school admits high school students in the top 10 percent of their graduating class. Race is an element of one of seven factors that the institution uses to rate applicants who aren’t admitted through the top 10 percent program.

Given that the lower court was sympathetic to the University of Texas, it seems likely that the Fifth Circuit will not overturn the school’s admissions system when it takes a second, more intensive look, because race is a relatively small factor—although we’ll have to wait and see.

The decision may seem like a blow to critics of affirmative action, who have argued that the use of race is unfair and were hoping the court would rule definitively against it. Some proponents of increased diversity in schools had also hoped that a decision that curtailed the use of race might push institutions to consider other factors, especially socio-economic status.

But the New York Times reports that legal experts believe the decision opens the door to additional challenges to affirmative action plans at public universities and “say it is only a matter of time before similar challenges are filed against private colleges, as well – and they are likely to succeed.”

The Hechinger Report will be keeping tabs on reactions and updating this post throughout the day.


The last time the Supreme Court ruled in a major case involving race in education was in 2007, when Kennedy cast the deciding vote in a ruling that said elementary and secondary schools can’t use race as the sole factor when assigning students.

Back then, both proponents and critics of race-based admissions found reasons to be both pleased and frustrated with the decision. Although the court had made it more difficult for schools to use race to increase diversity among students, it had not struck down the use of race outright.

Kennedy’s ruling on Monday is similarly incremental and ambiguous about what the long-term consequences might be, as the responses from both sides of the affirmative action debate highlight.

“The Supreme Court has established exceptionally high hurdles for the University of Texas and other universities and colleges to overcome if they intend to continue using race preferences in their admissions policies,” said Edward Blum, an activist (and UT alum) who organized the legal challenge against the university, in a statement reported in the Washington Post. “It is unlikely that most institutions will be able to overcome these hurdles.”

The Association of Public and Land-grant Universities wrote in an emailed statement that its members would try to ensure diversity among students and faculty in the wake of the decision, although “it will take some time for us to fully process what this ruling means for our universities.”

Attention now reverts back to Texas from Washington, D.C. (or more precisely, to New Orleans, where the appeals court is located). The Fifth Circuit will reexamine the UT program with a stricter lens to decide whether the university’s consideration of race for some students is necessary alongside its larger race-neutral program that is also meant to ensure diversity.

Justice Ruth Bader Ginsberg, the lone dissenter, noted in her opinion that the university’s top 10 percent system is able to ensure diversity mainly because it relies on extensive racial segregation among Texas’s secondary schools.

“Only an ostrich could regard the supposedly neutral alternatives as race unconscious,” she wrote. “Texas’ percentage plan was adopted with racially segregated neighborhoods and schools front and center stage.”

Still, at Bloomberg News, Noah Feldman suggested that when the appeals court looks again at UT’s race-conscious system, it “might well say there must be some other way to accomplish this.”

For a look at what affirmative action–and its demise–have meant at the state level for minority enrollments in higher education, check out this series of graphics from the New York Times.

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