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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Curriculum experts say Gove's plans could lower standards

'Battle of Balaclava, 25th October 1854', painted circa 1920 by John Charlton. The draft art curriculum is criticised as being too focused on white European artists. Illustration: The Print Collector/Corbis

A member of the group that has been advising the government on how to implement the new "national" curriculum for English state schools offers a scathing verdict: "The whole process has had a very chaotic feel. It's typical of government policy at the moment: they don't think things through very carefully, they don't listen to anyone and then just go ahead and rush into major changes."

Since January, Education Guardian can reveal, groups of experts in 11 subjects – many of them working teachers – have been meeting to try to help the government provide support to schools for the launch of the new curriculum for five- to 14-year-olds from September next year.

These "expert groups" have been advising the Department for Education on the training implications for student teachers, who must be taught from September this year how to teach it, and also on any new resources that might be needed.

But the progress of the groups, set up by the Teaching Agency – now the National College for Teaching and Leadership, which is part of the DfE – has been problematic. Documents submitted to the DfE in late May and now passed to this newspaper show that several groups have raised fundamental concerns about key aspects of the new curriculum, which is still in draft form, with only three months to go.

A consultation was held on the draft curriculum from February to April. Ministers are expected to react next month to the thousands of responses before the documents get the final government sign-off in mid-September.

For primary history, the group, chaired by Hilary Morris, of Brighton University, says: "We are unanimous … that this syllabus must receive significant changes if it is to meet the objective of raising the standard of history teaching in schools."

The DfE group's submission says: "The degree of prescription in the draft is lacking in consistency and academic rigour. Whereas some periods have extensive structure, others do not. There are no clear guidelines on how schools improve the teaching of history."

As the Guardian revealed over the weekend, the government is now circulating a revised history draft – although it has yet to be published – which may be more positively received by history teachers and will allow schools more freedom over teaching. However, teachers from several other subjects also raised serious concerns.

In English, the expert group criticises the draft, saying "an over-emphasis on synthetic phonics in the early years excludes other strategies and is likely to lower standards of reading". The group, chaired by the former Cambridge University academic Eve Bearne, adds that there is an over-emphasis on technical aspects of writing, at the expense of creativity.

In art and design, the draft is criticised for having "substantially weakened content" and for lacking "breadth, depth or cohesion". It has a "regrettably narrow" view of the subject, with a focus only on the history of western art produced by "white European men", "thereby ignoring the realities of the contemporary world".

In music, the group mentions a shift towards a focus on "acquiring knowledge of music rather than learning through doing", worries about an over-emphasis on "the western classical tradition" and the new primary curriculum not mentioning use of technology, while warning of "concern that class teachers will feel even less able to teach music" as a result of the new curriculum.

In the new subject of computing, there is an "over-emphasis on computer science", says the expert group, and "a danger in primary schools that most teachers will not feel capable" of teaching it.

The languages group – languages will be compulsory in primary schools for the first time – says some trainee primary teachers may not be exposed to any language teaching during 2013-14, while "many primaries" will find the new curriculum "challenging". Group reports on maths, geography and PE are more neutral. Education Guardian has not seen the responses on science or design and technology.

The development of the new curriculum, which will apply to most English primary schools and up to 40% of secondaries, with the remainder – academies – not having to follow it, has been dogged by widespread claims of secrecy. The government's "terms of reference" for the groups project say that "all discussion and documentation" supplied by the DfE will "remain confidential unless otherwise stated"; and that minutes of meetings between chairs of the subject groups will also be confidential.

Education publishers' representatives, including a member of an assessment company – GL Assessment – have attended the group chairs' meetings, as have the charities the Teacher Development Trust and the Cambridge Primary Review Trust.

The government is expected to go public on the groups' recommendations on training resources by the time of the final curriculum publication in September.

At a recent appearance at the Commons select committee, Michael Gove, the education secretary, said the history and design and technology draft curricula would be revised, but gave no indications about other subjects.

Minutes of the latest meeting at the DfE of the chairs group say: "Until the curriculum is finalised, it is impossible for the groups to clearly establish any next steps."

Mary Bousted, general secretary of the Association of Teachers and Lecturers, says: "These reports are the end result of massive hubris by the secretary of state, in his belief that curriculum reform is easy, and that it can be redesigned according to Tory principles without too many problems. Michael Gove is finding out to his cost that it's not like that. These curriculum reforms are a mess."

A DfE spokesman says: "These expert groups were not set up to advise on the curriculum. They are looking at how best to support new entrants to teacher training who will be teaching the new curriculum when they finish their courses. They do not work for the department.

"We have consulted on the draft curriculum and will be publishing revised versions in due course."

However, the groups have also been working on resources for schools, rather than only supporting teacher education, and were described as "national curriculum Expert Subject Advisory Groups" in a document drafted by the chair of the group last week.

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