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Justices sidestep admission ruling

WASHINGTON – Affirmative action in university admissions survives for now, under a Supreme Court ruling in a closely watched case that involves the University of Texas.

In a 7-1 decision, the justices directed a lower appellate court to examine more closely the University of Texas’ admissions policies that may take race into account. Though the university now faces tougher scrutiny, the decision leaves intact an earlier ruling that allows affirmative action for colleges.

“A university must make a showing that its plan is narrowly tailored to achieve the only interest that this court has approved in this context, the benefits of a student body diversity that encompasses a broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element,” Justice Anthony Kennedy wrote for the majority.

The decision sends the affirmative action challenge back to the 5th U.S. Circuit Court of Appeals, which is supposed to determine “whether the university has offered sufficient evidence to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.”

The decision may be most notable for what it does not do.

Frustrating the hopes of some conservatives, including Justices Antonin Scalia and Clarence Thomas, the court’s majority didn’t use the University of Texas case to overturn a 2003 decision involving the University of Michigan.

In that earlier ruling, the Supreme Court upheld the University of Michigan Law School’s use of race as one factor among many. Justice Sandra Day O’Connor, a Republican appointee who’s since retired, wrote the 2003 majority opinion, which included the key conclusion that “student body diversity is a compelling state interest that can justify the use of race in university admissions.”

Alito, a staunch conservative who’s voiced much more skepticism about racial preferences, replaced O’Connor in 2005. Alito, nonetheless, didn’t join either Scalia or Thomas on Monday in writing concurring opinions to voice disapproval of affirmative action.

Justice Ruth Bader Ginsburg was the sole dissenter, and she underscored her points by reading a summary of her dissent from the bench.

“The court rightly declines to cast off the equal protection framework settled 10 years ago,” Ginsburg said, adding her concerns about other aspects of the court’s decision Monday.

Determining that a policy meets a “compelling state interest” is one of the crucial elements a court considers when ruling whether racial distinctions comply with the Constitution. Under the 14th Amendment, states must grant “the equal protection of the laws” to all people. The other crucial element courts consider is whether the racial policy is “narrowly tailored,” which rules out sweeping quotas.

The Texas case arose from a challenge initially filed by Abigail Noel Fisher, a Caucasian woman who applied as an undergraduate to the University of Texas for the class that entered in fall 2008. The University of Texas guarantees admission to students in the top 10 percent of their high school classes, but Fisher’s 3.59 GPA wasn’t enough to make the grade, so she wasn’t guaranteed admission under the state’s college policy.

The university also admits a certain number of other students, for whom race, leadership experience, socioeconomic status and other factors may provide admissions advantages. Fisher, who had a combined SAT score of 1180 out of 1600, was rejected. She subsequently enrolled at Louisiana State University and graduated last year.

Other schools have, likewise, considered race in admissions, with the University of North Carolina stressing in a legal brief that “the process is far from mechanistic,” while the University of Kansas and Pennsylvania State University added separately that “race is only one of many factors” taken into account.

The University of Texas case was heard last October, at the very start of the term that’s scheduled to end this week, and it took the justices longer to fully decide than any other case this term.

Justice Elena Kagan, formerly the solicitor general in the Obama administration, recused herself from the case.

The Supreme Court will return with more decisions today, potentially including several cases involving same-sex marriage.


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