Politics & Government

What Justice Kennedy said in the Texas affirmative action decision

In this Feb. 25, 2016, file photo, in honor of Justice Antonin Scalia, a flag in the Supreme Court building's front plaza flies at half-staff in Washington.
In this Feb. 25, 2016, file photo, in honor of Justice Antonin Scalia, a flag in the Supreme Court building's front plaza flies at half-staff in Washington. AP

Colleges will enjoy leeway to practice some forms of affirmative action in admitting students, under a Supreme Court ruling Thursday that upheld a unique program put in place at the University of Texas.

Capping a long-running legal battle brought on behalf of a rejected white student, the short-handed court concluded in a 4-3 ruling that the distinctive Texas plan is lawful under the Constitution’s Equal Protection Clause. Other colleges, too, can take shelter under the court’s ruling.

“Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission,” Justice Anthony Kennedy wrote.

The 79-year-old Kennedy, appointed by President Ronald Reagan, has previously opposed affirmative action programs. But while noting the university’s “obligation to engage in constant deliberation and continued reflection regarding its admissions policies,” Kennedy also empowered colleges to experiment in the search for diversity.

“It remains an enduring challenge to our nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity,” Kennedy wrote, adding that “public universities, like the states themselves, can serve as laboratories for experimentation.”

Kennedy used 20 pages for his majority opinion, joined by liberal justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

Underscoring the strong feelings elicited by affirmative action, conservative Justice Samuel Alito wrote 51 pages in a dissent that he read in part from the bench.

“What is at stake is whether university administrators may justify systematic racial discrimination simply by asserting that such discrimination is necessary to achieve ‘the educational benefits of diversity,’” Alito wrote.

Chief Justice John Roberts, Jr. and Justice Clarence Thomas joined Alito in dissenting.

Further shaping the decision was the absence of the late conservative Justice Antonin Scalia, a strong affirmative action opponent who passed away in February. Justice Elena Kagan, who formerly served as the Obama administration’s solicitor general, did not participate.

Reactions to the court’s long-awaited ruling fell along predictable lines, underscoring the nation’s unreconciled divisions over race and affirmative action.

Presumptive Democratic presidential candidate Hillary Clinton called the decision “a win for all Americans,” while the chairman of the Congressional Black Caucus, Democratic Rep. G.K. Butterfield of North Carolina, likewise praised the decision as a recognition of the benefits of diversity.

“Our country is stronger, more credible and more effective when our educational institutions include highly-qualified individuals with roots, cultures, and traditions that reflect our nation’s rich diversity,” Attorney General Loretta Lynch stated.

From the right, New York University Law School Professor Richard Epstein denounced Kennedy’s “sorry opinion,” and Carrie Severino, chief counsel of the Judicial Crisis Network, used the decision to remind fellow conservatives of the vacancy left by Scalia’s death.

“This Supreme Court is apparently not prepared to do the hard work of enforcing our constitutional rights,” Severino said in a statement, adding that “we must insist that the next justice have the backbone to step up to that role.”

The case, Fisher v. University of Texas, has been one of the most closely watched of the Supreme Court’s term, which began last October. It also is one whose basic facts were already well known to the court, which in 2012 heard an earlier version of the dispute and then essentially punted.

The University of Texas guarantees admission to students from the top 10 percent of their high school classes. For others, the school considers race along with “special circumstances,” such as socioeconomic status and coming from a single-family home.

“Although admissions officers can consider race as a positive feature of a minority student’s application, there is no dispute that race is but a ‘factor of a factor of a factor,’” Kennedy noted.

The case goes back to 2008, when the University of Texas rejected Abigail Noel Fisher’s application. Fisher, who is white, had a cumulative 3.59 grade-point average and a combined SAT score of 1180 out of 1600. Because she was not in the top 10 percent of her Steven F. Austin High School class in Sugar Land, Texas, she did not merit automatic acceptance under the university’s admissions program.

Fisher graduated from Louisiana State University in 2012.

In Supreme Court parlance, race-conscious policies, like those giving ethnic minorities a college admissions advantage, must be “narrowly tailored” to serve a “compelling state interest.” Both standards must be met. Specific racial quotas, for instance, are not narrowly tailored enough to survive legal challenge.

“The compelling interest that justifies consideration of race in college admissions is not an interest in enrolling a certain number of minority students,” Kennedy wrote. “Rather, a university may institute a race-conscious admissions program as a means of obtaining the educational benefits that flow from student body diversity.”

Kennedy further cited the evident “good faith” shown by the University of Texas officials who evaluated their student body and different affirmative action proposals.

“To compel universities to admit students based on class rank alone is in deep tension with the goal of educational diversity,” Kennedy wrote.

Michael Doyle: 202-383-0006, @MichaelDoyle10