Courts must take a skeptical look at affirmative-action programs at public colleges and universities, the Supreme Court ruled Monday, in a decision that is likely to set off a wave of challenges to race-conscious admissions policies nationwide.
The 7-to-1 decision avoided giving a direct answer about the constitutionality of the program, used by the University of Texas at Austin, that was before the court.
The program will continue for now, but the justices ordered an appeals court to reconsider the case under a demanding standard that appears to jeopardize the program.
The compromise that the majority reached was at least a reprieve for affirmative action in higher education, and civil rights groups that had feared for the future of race-conscious admission programs were relieved. Conservatives and other opponents of the current version of affirmative action vowed to use the court’s ruling as a road map to bring future cases.
The decision did not disturb the Supreme Court’s general approach to affirmative action in admissions decisions, saying that educational diversity is an interest sufficient to overcome the general ban on racial classifications by the government. But the court added that public institutions must have good reasons for the particular methods they use to achieve that goal.
Colleges and universities, Justice Kennedy wrote for the majority, must demonstrate that “available, workable race-neutral alternatives do not suffice” before taking account of race in admissions decisions.
That requirement could endanger the Texas program when it is reconsidered by the United States Court of Appeals for the Fifth Circuit, in New Orleans. The university’s program admits most undergraduates under race-neutral criteria, accepting all Texas students who graduate near the top of their high school classes. But the university also uses a race-conscious system to choose the remaining students.
Courts reviewing government programs that make distinctions based on race subject them to a form of judicial review known as “strict scrutiny,” requiring the government to identify an important goal and a close fit between means and ends. Justice Kennedy’s opinion focused on and tightened the second part of the test.
“Strict scrutiny,” Justice Kennedy wrote, “does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice.”
Courts reviewing affirmative action programs must, he wrote, “verify that it is necessary for a university to use race to achieve the educational benefits of diversity.” That requires, he said, “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.”
Justice Ginsburg, who announced her dissent from the bench, said the race-neutral part of the Texas program worked only because of “de facto racial segregation in Texas’ neighborhoods and schools.”
