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Supreme Court sends affirmative action case back to lower courts

George Curry | 6/27/2013, 12:11 p.m.

WASHINGTON (NNPA) – The United States Supreme Court sidestepped making a decision on whether a University of Texas admissions plan that allows the limited consideration of race is unconstitutional by remanding the case to the U.S. Court of Appeals for the 5th Circuit for further review.

On Monday, the court voted 7-1 to send the case back to the 5th Circuit in New Orleans. Writing for the majority, Justice Anthony Kennedy said the lower court did not subject the University of Texas to the highest standard of judicial scrutiny.

“… 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,” Kennedy wrote. “Rather than perform this searching examination, however, the Court of Appeals held petitioner could challenge only ‘whether [the university’s] decision to reintroduce race as a factor in admissions was made in good faith.”

Ruth Bader Ginsburg, who wanted to uphold the lower court’s decision supporting the University of Texas, was the lone dissenter.

“The University of Texas at Austin is candid about what it is endeavoring to do: It seeks to achieve student-body diversity through an admissions policy patterned after the Harvard plan referenced as exemplary in Justice Powell’s opinion in Regents of Univ. of Cal. V. Bakke,” she wrote. “The university has steered clear of a quota system like the one struck down in Bakke, which excluded all nonminority candidates from competition for a fixed number of seats.”

She added, “And like so many educational institutions across the Nation, the university has taken care to follow the model approved by the Court in Grutter v. Bollinger.”

Clarence Thomas was the only justice who went on record saying he would have voted to overturn the court’s 2003 decision in Grutter, permitting the narrowly tailored use of race in college admissions.

Thomas said, “I write separately to explain that I would overrule Grutter v. Bollinger and hold that a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.”

Justice Elena Kagan, a former Solicitor General, recused herself, presumably because she had worked on the case earlier.

University of Texas President Bill Powers said Monday in a statement, “We’re encouraged by the Supreme Court’s ruling in this case. We will continue to defend the university’s admission policy on remand in the lower court under the strict standards that the Court first articulated in the Bakke case, reaffirmed in the Grutter case, and laid out again today. We believe the university’s policy fully satisfies those standards.

The case grew out of a decision by Abigail Fisher, a White Texas resident, to file suit against the University of Texas after she was turned down for admission for the 2008 term. Fisher, who later graduated from Louisiana State University, claimed the university had violated the equal protection clause of the 14th Amendment and Title VI of the Civil Rights Act of 1964 because it allowed the consideration of race in evaluating applicants to the university.