US court sends back affirmative action case

The US Supreme Court has avoided a major ruling on affirmative action in college student admissions, but cautioned that university policies that take race into account could be more vulnerable to legal challenges in the future.

In a lopsided 7-1 vote on Monday that few expected, the justices sent a case about the policy at the University of Texas at Austin back to a lower court for reconsideration.

That means Abigail Fisher, a white woman from suburban Houston, will have a second chance to argue that she was wrongly rejected entry to the university while minority students with similar grades and test scores were admitted thanks to the admissions policy.

Seven of the nine Supreme Court justices agreed to refer the case back to the Court of Appeal.

Justice Ruth Bader Ginsburg wrote the sole dissenting opinion, saying she would have upheld the Texas programme. while Justice Elena Kagan excused herself because of her prior support of affirmative action as US solicitor general.

To the relief of affirmative action supporters, the high court left intact existing court precedent that allows for limited consideration of race in university admissions.

Case under spotlight

Monday’s ruling will put the spotlight on an affirmative action case on the docket for the Supreme Court’s next term, which starts in October.

That case concerns a Michigan law that bans any affirmative action in public-college admissions.

Elaborating on how its previous rulings should be interpreted, the Supreme Court ruled that when an appeals court rehears the case, it must show less deference to the university when analysing whether the policy violated the Constitution’s guarantee of equal protection That means the University of Texas programme still hangs in the balance.

The justices’ tussle with this divisive issue reflects a political debate that has been ongoing since President John Kennedy’s administration of the early 1960s over the sort of “affirmative action” to be taken to help blacks and other minorities.

The Supreme Court has been at the centre of disputes over when universities may consider applicants’ race since 1978, when it forbade quotas in its groundbreaking Bakke case decision but said schools could weigh race with other factors.

Many court-watchers, basing their predictions on October’s oral arguments and the court’s more conservative make-up since the last big decision on the matter in 2003, had thought the Texas programme was doomed and the court might cut back on the use of affirmative action – admissions preferences that benefit minorities to diversify student enrollment – in broader terms.

In an opinion by Justice Anthony Kennedy, the court sent a warning to affirmative action advocates that they will need ironclad legal arguments to justify such programmes in the future if they are to survive legal challenges.

Array of qualifications

The 5th US Circuit Court of Appeals in New Orleans, which upheld the programme the first time it considered it, must now scrutinise the policy even more closely, including consideration of whether the university could have used a race-neutral alternative, Kennedy said.

The university “must make a showing that its plan is narrowly tailored to achieve the only interest that this court has approved in this context”, he wrote.

Under court precedent, that would mean a programme that takes into account a broad array of qualifications and characteristics “of which racial or ethnic origin is but a single though important element”.

Attorney General Eric Holder, who is African-American, said: “I am pleased that the Supreme Court has followed longstanding precedent that recognises the compelling governmental interest in ensuring diversity in higher education.

“The educational benefits of diversity are critically important to the future of this nation. As the Court has repeatedly recognised, diverse student enrollment promotes understanding, helps to break down racial stereotypes, enables students to better understand people of different races, and prepares all students to succeed in, and eventually lead, an increasingly diverse workforce and society,” he said.