Supreme Court Justice Anthony Kennedy
by Tony Mauro
Law.com
In a surprise 4-3 ruling, the U.S. Supreme Court on Thurs-day upheld the controversial affirmative action program of the University of Texas, delivering a significant victory to proponents of similar programs nationwide.
Justice Anthony Kennedy, writing for the majority in Fisher v. University of Texas, said, “As this Court has said, enrolling a diverse student body ‘promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races. Equally important, student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.’”
But Kennedy cautioned that the university’s program, combining a “top ten percent” admission policy combined with a holistic review of applications, is unique, suggesting that the decision does not resolve the issue broadly.
Kennedy also wrote, “It is the university’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.”
Kennedy was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Justices Clarence Thomas, Samuel Alito Jr. and Chief Justice John Roberts Jr. dissented.
The ruling was a sequel to the high court’s 2013 decision with the same name. Justice Elena Kagan did not take part in either ruling, presumably because of her involvement in the case as U.S. solicitor general before she joined the court in 2010. Antonin Scalia, who participated in oral argument but died in February, has not yet been replaced.
The high court’s 7-1 decision in the first Fisher case stopped short of overturning the Texas affirmative action program. But the justices told the U.S. Court of Appeals for the Fifth Circuit to review it again under a stricter standard less deferential to the university, which defended the program.
In response, the Fifth Circuit upheld the program for a second time in 2014, prompting plaintiff Abigail Fisher to file a second petition to the Supreme Court in February 2015.
Fisher, who is white, first challenged the program in 2008, after she was denied admission to the state university. The university’s “holistic” admission program uses race as one of several factors in the admissions process for a portion of the incoming class of students. Fisher claimed the consideration of race violated her 14th Amendment right to equal protection.
Kennedy wrote that it could not be shown that Fisher was denied equal protection of the laws when she was denied admission.
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