Justices Seek 'Strict Scrutiny' In Affirmative Action Case On Monday, the Supreme Court sent the University of Texas affirmative action case back to the lower courts, admonishing it to get it right — and make sure affirmative action programs are narrowly tailored.


Justices Seek 'Strict Scrutiny' In Affirmative Action Case

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From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.


And I'm Audie Cornish.

In a long-awaited decision on affirmative action in higher education, the Supreme Court has apparently reached a compromise. By a 7-to-1 vote, the court left intact its general approach to affirmative action programs, but it said they must be scrutinized more rigorously. The court then sent the case - a challenge to the University of Texas - back to the lower courts for further review. Here's NPR's legal affairs correspondent Nina Totenberg on the ruling and what it could mean going forward.

NINA TOTENBERG, BYLINE: Twice, over the last 35 years, the court has ruled that race may be one of many factors considered in college and university admissions. Twice the court has said that quotas are not permissible, but that an applicant's race may be considered as a plus factor, just as athletic ability or musical talent is considered.

But this year, with the composition of the Supreme Court now more conservative, opponents of affirmative action sought to finally get rid of most affirmative action programs in higher education.

Abigail Fisher, a white student, challenged the program at the University of Texas, claiming that she was denied admission because of her race and that less-qualified minority students were admitted. The university denied that, contending that her grades and board scores were not high enough to qualify her for admission no matter what her race.

Today, the Supreme Court did not resolve that question, but sent Fisher's case and the university's affirmative action program back to the lower courts for further evaluation. Emory Law School Dean Robert Schapiro.

ROBERT SCHAPIRO: So I think the court, in a sense, really did punt.

TOTENBERG: Both sides claimed victory, but the realpolitik of the ruling is that affirmative action supporters won more than they expected - at least for now. Jonathan Alger is president of James Madison University in Virginia.

JONATHAN ALGER: Well, I think many of us in higher education are breathing a sigh of relief today.

TOTENBERG: Indeed, experts of all ideological stripes said affirmative action programs are likely to stand for now while the legal fight over the Texas program continues. UCLA law professor Eugene Volokh is a longtime opponent of affirmative action.

EUGENE VOLOKH: My guess is that universities won't really change their actions much in light of this decision. But I do think that lower courts might change their approach in some measures.

TOTENBERG: Texas is unique among the states. By law, 75 percent of the university's students are admitted under the state's so-called 10 percent program. If a student graduates in the top 10 percent of his or her class, he or she is guaranteed admission. The remaining applicants are evaluated using grades, board scores and other factors, including race.

Those challenging the affirmative action program said that because the 10 percent program brings significant numbers of minorities to the school, there is no need for any consideration of race. That's because with neighborhoods and secondary schools throughout the state largely dominated by one race or ethnicity, the top 10 percent program has ensured that some 25 percent of the university's students are Hispanic or African-American, not nearly up to the percentage of minorities actually in the state, but still a substantial percentage.

Today, the Supreme Court agreed with the university that it does have a compelling interest in having a diverse student body. But the court did not say how diverse is diverse, and it said that the lower courts did not sufficiently examine the university's admissions program to see if, in addition to the race-neutral 10 percent program, any consideration of race is necessary or permissible.

Writing for the court majority, Justice Anthony Kennedy said the lower courts improperly deferred to the university's claim that it needed more diversity and failed to conduct a strict factual review to see if the program was really necessary and whether it was drawn as narrowly as possible.

The president of the University of Texas said today that the university is confident its program satisfies the requirements set down by the Supreme Court. But not everybody agrees. Michael McConnell is director of the Stanford University Constitutional Law Center.

MICHAEL MCCONNELL: I think the court has made it significantly more difficult for universities to justify the explicit use of race in their affirmative action plans.

TOTENBERG: Nonetheless, he adds that today's ruling leaves enough uncertainty that he does not expect most colleges and universities to change their affirmative action policies for now. Emory's Dean Schapiro agrees.

SCHAPIRO: The court leaves the status quo pretty much as is and allows affirmative action, as it now exists, to continue.

TOTENBERG: Former Reagan Solicitor General Charles Fried sees today's ruling as something of a holding pattern.

CHARLES FRIED: I think it was a vote for continuity and a vote for a kind of cautious approach.

TOTENBERG: Dissenting from today's ruling was Justice Ruth Bader Ginsburg. She would have upheld the Texas program as constitutional right now. Nina Totenberg, NPR News, Washington.

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