In a 4-3 decision (with Justice Elena Kagan recusing herself) the Supreme Court upheld the Fifth US Circuit Court’s ruling that the University of Texas at Austin appropriately utilizes race in its college admissions policy.

Under this policy, the school admits the top 10% of all high school applicants for 75% of spots and uses an holistic review process (where race is considered alongside personal and academic achievement) to fill the remaining 25% of spots.

In Fisher v. Texas, Abigail Fisher filed a lawsuit against the UT after she was denied admission to the University of Texas at Austin, the system’s flagship school, due to comparatively low grades and test scores. She claimed that she was kept out of the school because she was white, since racial diversity is considered in the holistic review process, which UT uses if students are not in the top 10% of their class. UT claimed that Fisher would not have been admitted under that policy even if she received extra consideration due to her race.

Fisher and her attorneys appealed her case to the Supreme Court in 2012, which originally ruled that the standard of “strict scrutiny” was not initially applied in lower court proceedings, and sent the case back to the circuit court. The strict scrutiny standard would determine whether the consideration of race in public school admissions policies is “narrowly tailored” to further a “compelling” interest, as determined in the 2003 Supreme Court case Grutter v. Bollinger. The Fifth Circuit once again ruled that UT’s use of race was admissible, as it was tailored to specifically achieve the school’s “diversity” goals.

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Fisher appealed again and the case was argued before the Supreme Court AGAIN in December 2015.

In these arguments, justices’ doubts concerning the value of racial diversity in the classroom arose, with Chief Justice Roberts asking “What unique perspective does a black student bring to a class in physics?” and the now late Justice Scalia noting that if black applicants do not do well at the University of Texas, perhaps they should go to easier schools.

Despite last winter’s proceedings, on Thursday morning the Court released its ruling approving UT’s use of affirmative action—although the applied standard is quite narrow.

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Writing the majority decision, Justice Kennedy (joined by Justice Ginsberg, Justice Breyer, and Justice Sotomayor) proclaimed that UT’s affirmative action admissions policy upheld judicial standards of strict scrutiny and the UT admissions policy was legal under the Fourteenth Amendment’s Equal Protection Clause. The ever salty and undeniably useless Justice Clarence Thomas (joined by Chief Justice Roberts and Justice Alito) claimed in his dissent, however, that race based admissions policies are “faddish” and produce no educational benefits.

This decision means that affirmative action and the consideration of race in college admissions policies will live to see another day—although this policy is continually under scrutiny. In fact, in Grutter v. Bollinger, former Justice Sandra Day O’Connor predicted that race based admissions policies would not be necessary in 25 years time. That was in 2003. The future of affirmative action remains to be seen.


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