- The Washington Times - Monday, June 24, 2013

The Supreme Court on Monday sent a major affirmative action case back to the lower courts to be reheard, ducking the chance to rewrite discrimination laws and instead affirming the current state of law for racial preferences, saying they can be used for admissions but only if there is a compelling need and no other remedy works.

Some legal analysts had predicted the court would use the case from the University of Texas at Austin to issue a broad ruling that would overturn affirmative action policies, but the 7-1 ruling was narrow in scope and didn’t overturn any current laws or court precedents.

Both sides in the affirmative action debate claimed victory, with supporters of preferences saying the court reaffirmed their use while opponents said sending the case back to be reheard under stricter standards shows the justices are leaning toward ending special treatment.

“I am grateful to the justices for moving the nation closer to the day when a student’s race isn’t used at all in college admissions,” said Abigail Fisher, the plaintiff who brought the challenge to Texas’ policy.

Justice Anthony M. Kennedy, writing the majority opinion, said that under existing Supreme Court precedent, universities must prove not only discrimination but that the remedy is narrowly tailored to fix the problem.

“The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity,” Justice Kennedy said, laying out where the justices said the lower court’s earlier dismissal of Ms. Fisher’s case had fallen short.

His ruling leaves in place several Supreme Court precedents that overturned quotas, but left open the chance for schools to use race as one factor in considering whom to admit.

The case stems from Texas’ decision to create a new secondary screening for applicants who don’t qualify on the race-blind first round of admissions, which guarantees a spot to Texans who graduate in the top 10 percent of their high-school class. The second round includes minority status as a factor that would boost an applicant’s chance of being accepted.

Ms. Fisher was rejected under the first round in 2008 but had better credentials than some minority students accepted in the second round. She then sued and attended Louisiana State University while the case was being litigated.

The 5th U.S. Circuit Court of Appeals upheld the Texas policy, but Monday’s ruling says that court didn’t apply stiff enough scrutiny to see whether the preferences are needed. The Supreme Court ordered the 5th Circuit to rethink the case.

Justice Clarence Thomas, who agreed with the ruling, filed a blistering concurring opinion saying that it was time to end these kinds of racial preferences altogether.

The court’s lone black justice compared schools that say they are acting in the best interests of minorities to slaveholders who said bringing Africans to the U.S. to work brought them to civilization and Christianity, or to segregationists who said “separate but equal” education policies helped blacks as well as whites.

“Following in these inauspicious footsteps, the university would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign,” Justice Thomas wrote.

Justice Thomas said he would have overturned the 2003 precedent that approved using race, and questioned whether preferences can achieve the goal of raising those students’ performance. He also said neither the university nor any of those who filed briefs defending affirmative action were able to offer evidence.

Justice Ruth Bader Ginsburg provided the lone dissent, saying that she thought the lower court had already met its burden to examine the Texas policy. Justice Elena Kagan recused herself from the case.

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