Seven-one ruling does not abolish landmark University of Texas policy but asks appeals court to reconsider with new analysis

The U.S. Supreme Court has raised the bar on the consideration of race in the college admissions process, sending a seminal challenge to the University of Texas’s diversity policy back to the lower appeals court and instructing the judges to consider the case again under a tougher burden.

The ruling does not abolish the practice of affirmative action as its supporters had feared. The policy has helped to shape the landscape of diversity within higher education for some 35 years, and has become a growing bugbear of the conservative right that sees it as a form of discrimination against white students.

But the judgment, delivered by Justice Anthony Kennedy on a 7-1 vote with Justice Elena Kagan recusing herself from the decision, does raise the hurdle that universities must jump if they are to convince the courts that their use of weighting in favour of racial groups is constitutional. The ruling says that a “strict scrutiny” must be applied to any admissions policy.


The ruling was made in response to the case of Fisher versus University of Texas at Austin. Abigail Fisher, a white student, was rejected by the institution in 2008 under its race-conscious admissions policy, and sued the university for discrimination.

Under the judgment, the university can still apply an admissions programme with a racial component, but it will now have to convince the lower appeal court in a renewed hearing that it meets the “strict scrutiny” criterion. To do that, the management will have to show that the programme was narrowly tailored specifically to attain diversity and satisfy the court that “no workable race-neutral alternatives would produce the educational benefits of diversity”.

In future, courts will no longer be able to give universities the benefit of the doubt in trusting that their admissions procedures were justifiable. The Supreme Court ruled that the court of appeals for the Fifth Circuit was wrong to assume the University of Texas’s decision “was made in good faith” — it should have closely examined how the process worked in practice and made its own assessment.

The appeals court will now have to reconsider the case and judge the university’s admissions programme “under a correct analysis”. — © Guardian Newspapers Limited, 2013

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