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Supreme Court sends Texas affirmative action case back to lower court

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In a lone dissenting opinion, Justice Ruth Bader Ginsburg said she would not return the University of Texas case to the lower court for a second look.

“As the thorough opinions below show, the University’s admissions policy flexibly considers race only as a ‘factor of a factor of a factor of a factor’ in the calculus,” she wrote in a four-page dissent.

She said the court was correct to avoid any attempt to overturn the equal protection framework settled an earlier affirmative action precedent, the 2003 decision upholding a race-based admissions program at the University of Michigan Law School.

Kennedy’s majority opinion affirms the 2003 decision approving the use of race as one of several factors in admissions at the Michigan Law School. But the language of Monday’s ruling beefs up the application of strict scrutiny compared with how it was applied in the Michigan Law School case.

Monday’s decision will make it more difficult for college officials to justify the use of race as a factor in college admissions. It places a premium on institutions developing race-neutral criteria and other color-blind procedures.

Kennedy said that race-conscious admissions programs must only be used as a last resort, and only then after surviving strict judicial scrutiny.

Civil rights groups reacted with a sense of relief that the high court did not strike down the Texas program.

“Today’s decision is an important victory for our nation’s ongoing work to build a more inclusive, diverse America,” Wade Henderson, president of the Leadership Conference on Civil and Human Rights, said in a statement.

“We believe that the University of Texas’s admissions policy is a carefully crafted one that will ultimately be upheld by the Court of Appeals,” he said.

David Gans of the Constitutional Accountability Center noted that the court avoided directly addressing the constitutional issue in the case.

“The court backed away from the edge of the cliff today,” he said. “The court surprised most court-watchers by issuing an extremely narrow decision.”

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