Supreme court sends affirmative action admissions case back to lower court

Abigail Fisher, a white student who was rejected by the University of Texas at Austin in 2008, sued over its affirmative action policy. Photograph: Susan Walsh/AP

The US supreme court has raised the bar on the consideration of race in the college admissions process, sending a seminal challenge to the University of Texas's diversity policy back to the lower appeals court and instructing the judges to consider the case again under a tougher burden.

The ruling does not abolish the practice of affirmative action, as its supporters had feared. The policy has helped to shape the landscape of diversity within higher education for 35 years, and has become an growing bugbear of the conservative right that sees it as a form of discrimination against white students.

But the judgment, delivered by Justice Anthony Kennedy on a seven-to-one vote with justice Elena Kagan recusing herself from the decision, does raise the hurdle that universities must jump if they are to convince the courts that their use of weighting in favour of racial groups is constitutional. The ruling says that a "strict scrutiny" must be applied to any admissions policy.

The ruling was made in response to the case of Fisher v University of Texas at Austin. Abigail Fisher, a white student, was rejected by the institution in 2008 under its race-conscious admissions policy, and sued the university for discrimination.

Under the judgment, the university can still apply an admissions programme with a racial component, but it will now have to convince the lower appeal court in a renewed hearing that it meets the "strict scrutiny" criterion. To do that, the management will have to show that the programme was narrowly tailored specifically to attain diversity, and satisfy the court that "no workable race-neutral alternatives would produce the educational benefits of diversity".

In future, courts will no longer be able to give universities the benefit of the doubt in trusting that their admissions procedures were justifiable. The supreme court ruled that US court of appeals for the fifth circuit was wrong to assume the University of Texas's decision "was made in good faith" – it should have closely examined how the process worked in practice and made its own assessment.

The appeals court will now have to reconsider the case and judge the university's admissions programme "under a correct analysis".

As the nuanced nature of the judgment began to be digested, both sides in an increasingly charged debate over affirmative action claimed victory. Benjamin Todd Jealous, president of the NAACP, said that though the supreme court stopped short of issuing total backing for the university, "this is a very good outcome".

Jealous said that the seven majority justices had been very clear that there was a role for race in the admissions policies of public universities. He predicted that when the appeals court came to reconsider the Fisher case, as it must now do, "it will not be difficult to prove a need to fight against the legacy of racial discrimination in states like Texas".

The NAACP chief added that race played only a small part in the University of Texas administration's process. Some 75% of all incoming students are drawn from the top 10% of achievers from all the state's public schools who have automatic right of a place irrespective of any other factor.

Of the remaining quarter of places, Jealous said, "a number of factors are taken into account, of which race is only one."

Roger Clegg, president of the Center for Equal Opportunity that filed a brief with the supreme court arguing that affirmative action should be deemed unconstitutional, interpreted the ruling as a loss for racial preferences in admissions. "In the short term the case is a loss for the University of Texas and for supporters of racial preferences. The court has made clear that 'strict' means 'strict'."

Clegg, a former legal adviser to President Reagan, said it was "unfortunate" that the supreme court had failed to give a definitive take on the issue. "But this leaves the door open to a future comprehensive ruling and we will work to achieve that."

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The supreme court should fully support using race in university admissions | Nick Chiles

University of Texas-Austin president Bill Powers speaks to the press outside the supreme court. Photograph: Mark Wilson/Getty Images

Considering the astounding variety of characteristics and accomplishments that applicants to America's most competitive colleges present to the admissions boards every year, it is disturbingly narrow-minded and off-base for our society to focus so much attention and angst on the color of an applicant's skin. The totality of a college applicant is about so much more than her racial group, or even her SAT scores.

The US supreme court ruling today is basically a "do over" on the issue of whether universities can consider race in the admissions process, sending the Texas case back to the lower courts. If it does anything, today's ruling sets an even tougher standard for public universities to use race as a factor in their admissions. If the court ultimately rules against affirmative action, the higher education community will be forced to take a huge step backwards – perhaps absorbing the final blow in American society's decades-long assault on affirmative action.

It's fascinating to note that all this debate about affirmative action on college campuses has occurred even as the business world and the military so strongly support affirmative action and believe in the importance of diversity. Consider that a slew of Fortune 100 companies (pdf), in addition to the US department of defense, submitted friend-of-the-court briefs to the Supreme Court urging it to keep affirmative action in place.

If the value or appeal of a college applicant was just about his GPA and standardized test scores, schools like Harvard, Yale, Stanford and MIT wouldn't even need an admissions board. They could simply fill each freshman class with all the students who boasted perfect SAT scores and 4.0 (or better in this era of inflated grades) GPAs. But in building universities that more closely resemble the real world that their students will be entering upon graduation, in creating vibrant and varied academic experiences for their student bodies, top schools know that they must cast their gaze far beyond a cursory look at a student's racial group and test scores.

When cello-playing honor roll student Abigail Fisher filed the lawsuit against the University of Texas challenging the school's policy of considering an applicant's race, she claimed she was denied her lifelong dream of going to Texas while students in her high school class with lower grades and similar activities were admitted. She alleged that "the only difference between us was the color of our skin".

University officials contended that Fisher wouldn't have been admitted even without the race factor because her numbers weren't high enough. University of Texas President Bill Powers argued that in academia and the business world, no one ever gets hired based only on their class rank in college or high school.

Abigail Fisher's analysis presents an exceedingly limited view of what goes on in the admissions offices of ultra-competitive schools like the University of Texas. If Fisher wanted to focus exclusively on grades, why single out the student whose skin color is different from hers? Why not challenge the university on its acceptance of the prima ballerina or the chess grandmaster or the linebacker or the award-winning essayist or the daughter of the Fortune 100 CEO or the all-state violinist or the hundreds of other students with fascinating resumes who likely were admitted with lower GPAs than Miss Fisher?

It is obvious that any school must look beyond just test scores and race when building a viable incoming class, so why have we become so preoccupied with the race of admitted students? Why didn't Fisher take on school "legacies" or athletes or musicians and accuse them of taking her spot?

For the past quarter century, I have interviewed about five students per year who are applying to my alma mater, Yale. The university considers these alumni interviews a valuable opportunity to form a more complete portrait of applicants who happen to live too far from New Haven to be interviewed by an admissions officer. In my 25 years of conducting interviews, I have had eight of my interviewees admitted to the university. Though that number is depressingly low, it is actually in line with the school's admittance rate of slightly over 7%.

The most interesting part of this experience has been the stunning level of talent I saw in the hundred or so students who weren't admitted. Through the years, among the legions of students who got the narrow envelope of rejection were class valedictorians, perfect SAT scores, top-flight musicians and passionately committed social activists. Some of them were so gifted that it would bring tears to my eyes to know that they would have to feel the sting of rejection after compiling resumes so remarkable.

Elite schools like Yale and the University of Texas would be quick to acknowledge that they could reach into the pool of rejected students and create incoming classes of students just as talented and deserving as the students who were admitted. Acceptance to these schools is never a guarantee for anyone, no matter a student's level of accomplishment.

Every year, I prepare my applicants for the probability of rejection by telling them that the student they are competing against is the one who looks the most like them. If they are a white trumpet-playing track star and student body president with a 3.9 GPA in rural Georgia, the Hispanic prima ballerina with a 3.7 GPA in Chicago is not their competition, it's the other white kids from rural schools far from the university, whose presence on campus would be considered a valuable part of the student mix.

Our preoccupation with the race and test scores of applicants sends our young people the dangerous message that their eventual advancement in their careers and their lives will come down to a simple numbers game – just focus on making the most sales or bringing in the most new clients and you will rise straight to the top.

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