By David G. Savage
5:59 PM EDT, June 24, 2013
WASHINGTON - Defying widespread expectations that they were on the brink of doing away with affirmative action in higher education, the Supreme Court justices Monday upheld using race as a factor in admissions decisions but said colleges and universities must prove that race-based policies are truly necessary to achieve diversity.
The ruling, after eight months of internal debate, brought conservative and liberal justices together on a middle-ground approach that reaffirms the importance of diversity on campus but nudges college officials to try “race-neutral” policies for enrolling more minority students.
Colleges and universities may consider a student’s race in their admissions policies, the high court held in a 7-1 decision covering the University of Texas, but only if doing so is necessary to achieve racial and ethnic diversity on campus.
The decision by Justice Anthony M. Kennedy opened new routes by which affirmative action plans can be challenged. But it also marked the first time that he and two other conservative members of the court, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., had endorsed the use of race as one factor in college admission decisions.
The outcome came as a relief to university officials and civil rights advocates. Since the justices agreed to hear the case last year, many had expected the conservative majority to use it as a vehicle to end affirmative action in education. Critics of such policies said they were pleased the justices remain skeptical of the idea of treating applicants differently because of their race.
The decision settled surprisingly little about the particular controversy in front of the justices. They did not rule on the constitutionality of a University of Texas admissions policy that was under review, nor on whether the university had violated the rights of Abigail Fisher, a white applicant who was turned down in 2008.
Instead, they reversed a lower court that had upheld the Texas policy. The justices told the U.S. 5th Circuit Court of Appeals to decide whether the Austin campus still needed to give a preference to some minority applicants. The justices noted that the state’s “top 10” law, which awards college admission to top high school graduates, has already led to an influx of Latino and black students.
Citing that improvement, Kennedy said it was no longer clear the university must give an edge to black or Latino applicants to ensure a significant percentage of minorities on campus. The judges who review the Texas policy “must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity,” he said. “If a non-racial approach” could work to bring about diversity, “then the university may not consider race,” he said in University of Texas vs. Fisher.
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