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Supreme Court sends Texas affirmative action case back to lower court

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“The reviewing court must ultimately be satisfied that no workable race-neutral alternative would produce the educational benefits of diversity,” Justice Kennedy wrote.

He added that “strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.”

At issue in the case was whether the affirmative action admissions program at the University of Texas at Austin violated the Constitution’s "equal protection" clause by relying too heavily on race as a factor in admitting minority students to the state’s flagship university.

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.

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