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Justices give school another shot in affirmative action case

WASHINGTON — Giving the University of Texas at Austin another chance to prove that its affirmative action program passes constitutional muster, the U.S Supreme Court held that schools must prove that admissions policies considering race among other factors must be strictly tailored to the  purpose of diversity.

Contrary to a ruling from the lower court, it is not enough that race was considered in a “good faith effort” to increase diversity, the justices ruled.

Now officials from the University of Texas at Austin, defending its policy considering race as one factor in a holistic admissions decision-making process, must take their case back to the lower courts to prove that the policy passes the heightened strict scrutiny analysis established in the 1978 case Regents of the University of California v. Bakke and the 2003 case Grutter v. Bollinger.

“The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity,” wrote Justice Anthony M. Kennedy for the 7-1 majority in Fisher v. University of Texas at Austin. “If ‘a nonracial approach … could promote the substantial interest about as well and at tolerable administrative expense,’… then the university may not consider race.”

The case involves two white students who were denied admission and later filed suit against the school claiming that its policy, which considered race as one factor in a multi-tiered and complex admissions formula, violated their equal protection rights.

The school argued that its policy, which was modeled after the one upheld by the court in Grutter, was narrowly tailored enough to meet the school’s compelling interest in achieving diversity in its student body and reflecting the racial demographics of the state.

The 5th U.S. Circuit Court of Appeals agreed. The court affirmed the district court ruling granting the school summary judgment, holding that the policy was “supported by the ‘serious, good faith consideration’ required by Grutter.” An en banc panel denied rehearing, and the Supreme Court granted certiorari and heard the case.

As the case heads back to the lower courts, the school’s president said he was “encouraged” by the court’s ruling.

“We will continue to defend the University’s admission policy on remand in the lower court under the strict standards that the Court first articulated in the Bakke case, reaffirmed in the Grutter case, and laid out again today,” said Bill Powers in a statement. “We believe the University’s policy fully satisfies those standards.” Powers said the ruling would have “no impact” on current admissions decisions.

The case was closely watched not only in the educational field, but also by employers and business groups, many of whom submitted briefs in the case urging the court to uphold affirmative action policies to increase the diversity of their hiring pools.

Justices Antonin G. Scalia and Clarence Thomas joined Kennedy’s opinion, but also each issued concurrences. Justice Ruth Bader Ginsburg dissented, and Justice Elena Kagan, who was solicitor general when the Justice Department weighed in on the case, took no part in the decision.

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