Our View

Court orders more study on admissions

By From page A6 | July 02, 2013

The issue: Justices rule that affirmative action must meet tougher standards

The increasingly conservative Supreme Court did not throw out the use of race as a factor in determining college admission, as some had feared. But in announcing their 7-1 decision last week, the justices sent the University of Texas’ race-sensitive admissions case back to a lower court with a call for a “more demanding standard,” as The New York Times reported.

THE CASE INVOLVED a white Texas woman who sued after being denied a place at the university in Austin, alleging that racial favoritism violated the Constitution’s equal-protection clause. She has since graduated from Louisiana State, leaving behind a legacy in the growing body of affirmative action law.

Justice Anthony Kennedy, writing for the majority, said race could be used as a factor in selecting incoming freshmen only after a university concludes “that no workable race-neutral alternative would produce the educational benefits of diversity.”

Elena Kagan recused herself from the decision, having had some contact with the case when she was at the Justice Department, and Ruth Bader Ginsburg voted no on the grounds that affirmative-action cases had been satisfactorily dealt with in earlier decisions “and there is no need for a second look.”

But the other justices, in sending the case back to the Fifth Circuit, called for a much closer second look, known by the courts as “strict scrutiny.”

THE COURT’S DECISION was almost waspish in tone because, over a series of cases going back to 1978, it has developed increasingly stringent standards for when race may be used as a determining factor in college admissions.

Kennedy wrote that it was both the university’s and the judiciary’s obligation to “ensure that each applicant is evaluated as an individual and not in a way that makes the applicant’s race or ethnicity the defining feature of his or her application.”

Admissions officers will now have to bone up on exactly what the court means by “strict scrutiny.”

Partially quoting from earlier decisions, Kennedy wrote, “Strict scrutiny is a searching examination, and the government bears the burden to prove ‘that the reasons for any (racial) classification (are) clearly identified and unquestionably legitimate.’ ”

KENNEDY WROTE that under the tougher standards, lower courts are not permitted “to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice, yet that is what the District Court and Fifth Circuit did here.”

The federal appeals court will rehear the case under the tougher standards.

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