The U.S. Supreme Court on Monday sidestepped a clear ruling on the constitutionality of affirmative action in college admissions, but kept the practice intact for now.
The high court’s decision in a Texas case instructs lower courts to more closely scrutinize schools’ justifications for using race as a factor in diversifying student bodies. But the justices stayed clear of tinkering with the foundation of affirmative action.
“It allows race to continue to be used as a factor,” said Nancy Zisk, a professor at the Charleston School of Law, who teaches discrimination law.
The case at hand involved Abigail Fisher, a white woman who said the University of Texas denied her admission based on her race. Texas courts sided with the school. When the Supreme Court agreed to hear the case, observers saw a chance for a broad ruling that could have ended the use of race in admissions nationwide.
In a 7-1 decision, the Supreme Court instead sent the case back to a lower court for consideration. The justices ordered the lower court to apply a strict scrutiny standard when considering the case, the highest level of judicial review.
The justices said the federal appeals court in New Orleans did not apply that highest level of judicial scrutiny when it upheld the Texas plan, which uses race as one among many factors in admitting about a quarter of the university’s incoming freshmen.
Justice Anthony Kennedy, who wrote for the majority, stated that “the university must prove that the means chosen by the university to attain diversity are narrowly tailored to that goal.”
The decision did not question the foundation of affirmative action, which the high court last reaffirmed in 2003.
Larry Kobrovsky, whose legal action prompted the Charleston County School Board to end racial quotas at the Buist Academy magnet school, said the high court reinforced that no university can use racial preference alone as a determining factor in admission.
“They kicked the can down the road for a while,” he said. “When it comes back, the Supreme Court will outlaw what they did.”
For now, the contentious debate over whether race can be considered as a factor in college admissions will live on. Kobrovsky and Zisk predicted that the issue will be back before the high court.
“We are in a waiting game,” Zisk said. “I do predict it will come back to the Supreme Court. With Kennedy in the middle, it’s not clear how the court will decide that.”
Harvey Gantt, the first African-American student to be admitted to Clemson University, integrating the school, applauds places like Texas and others that he said are trying to address the issue of diversity.
“I think the university should have a right to that goal,” he said.
Gantt, who went on to become Charlotte’s first black mayor and one of the first African-American nominated for major office in North Carolina, said he is a strong believer in diversifying the nation’s college campuses. “In my opinion, we haven’t been diverse enough,” said Gantt, a Burke High School graduate.
Gantt called Monday’s high court ruling a compromise on the important element of balancing diversity in schools.
The high court most recently reaffirmed the constitutionality of affirmative action in Grutter v. Bollinger in 2003, a case involving the University of Michigan.
“As the Court said in Grutter, it remains at all times the university’s obligation to demonstrate, and the judiciary’s obligation to determine, that admissions processes ‘ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application,’ ” Kennedy said.
Jimmie Foster, the College of Charleston’s assistant vice president for admissions and enrollment management, said the school will continue to watch the case closely. Foster said there are differences between the College of Charleston and the University of Texas, which uses a “top 10 percent” rule that says students graduating in the top 10 percent of their Texas high school class are admitted to in-state public schools.
The College of Charleston considers potential students’ whole applications, including transcripts, extra-curricular activities and “all the things the students can bring to the table,” he said.
Foster said race can be taken into consideration as well. Whether that option for universities will be affirmed or struck down by the high court in the future is anyone’s guess, he said.
“I don’t think we can speculate with today’s decision,” he said.
Foster predicts that the issue will return to the high court by next year, and he’s sure it will be as closely followed as it was this time. While awaiting Monday’s ruling, the U.S. Supreme Court’s blog page, which provides live updates from the court, was visited at one point by 80,000 people.
The Associated Press contributed to this report. Reach Natalie Caula at 937-5594 or Twitter.com/ncaula.
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