Supreme Court kicks Texas affirmative action case back to lower courts

People wait outside the Supreme Court in Washington as key decisions are expected to be announced Monday, June 24, 2013.

J. Scott Applewhite, Associated Press

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People line up in front of the Supreme Court in Washington, Monday, June 24, 2013, before it opened for its last scheduled session. The Supreme Court has 11 cases, including the term’s highest profile matters, to resolve before the justices take off for summer vacations, teaching assignments and international travel. The court is meeting Monday for its last scheduled session, but will add days until all the cases are disposed of.

Charles Dharapak, Associated Press

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In this Oct. 10, 2012 file photo, Abigail Fisher, right, who sued the University of Texas, walks outside the Supreme Court in Washington. The Supreme Court has sent a Texas case on race-based college admissions back to a lower court for another look. The court’s 7-1 decision Monday leaves unsettled many of the basic questions about the continued use of race as a factor in college admissions.

Susan Walsh, File, Associated Press

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In a 7-1 decision, the U.S. Supreme Court on Monday remanded a challenge to the University of Texas’ affirmative action admissions policy to lower courts to reconsider, holding that the district court had erred in not applying "strict scrutiny" as required by earlier precedent.

Justice Anthony Kennedy's decision held that the “reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”

Justice Ruth Bader Ginsburg filed the lone dissent, and Justice Elena Kagan recused herself, due to earlier contact with the case in the Obama administration before joining the Court.

The University of Texas adopted a policy by which any student graduating in the top 10 percent of his or her class is automatically accepted. This followed a 1996 appeals court decision that scaled back affirmative action in that jurisdiction.

"While the top-10 percent plan vastly expanded the number of Texas high schools sending graduates to the state's flagship campus," The Wall Street Journal notes, "UT administrators frowned at having to accept applicants from less competitive high schools, whose top students often had lower test scores and poorer academic preparation than middle-tier students from leading suburban high schools that traditionally served as the university's principal feeders."

But in 2003 the Supreme Court split 5-4 to sustain an affirmative action policy by the University of Michigan Law School. The University of Texas seized this opening to supplement its 10 percent policy with targeted preferences for black and Hispanic students from more competitive schools that would otherwise not be accepted.

A caucasian female high school student challenged this race preference in 2008 after being denied entrance to UT.

The Fisher decision orders the lower court to apply "strict scrutiny" in the Texas case, asking hard questions about alternatives to race preferences, rather than simply assuming that the state had wide latitude.

In sending the case back for a fresh look, a few justices indicated they would take a skeptical view down the road. Justice Antonin Scalia wrote that he would prefer to overturn Grutter v. Bollinger, the 2003 decision supporting affirmative action.

Eric Schulzke writes on national politics for the Deseret News. He can be contacted at eschulzke@desnews.com.