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High court gives victory to supporters of affirmative action

People walk at the University of Texas campus in Austin, Texas.REUTERS/Jon Herskovitz

The Supreme Court on Thursday upheld the University of Texas’s consideration of race in its admissions policy, handing a victory to supporters of affirmative action in a case closely watched by universities in Massachusetts and across the country.

In its 4-3 decision, the court rejected the argument that admissions should be based purely on academic performance, siding instead with universities — including the Massachusetts Institute of Technology and Harvard — that contended racial diversity has educational value for all students and for American society.

“The decision means that race-conscious affirmative action programs in higher education, like the one Harvard University has, for example, will be upheld as long as they follow the court’s guidelines of avoiding crude racial quotas,” and are finely tuned, said Laurence H. Tribe, a professor of constitutional law at Harvard Law School.


If the court had ruled the other way, he said, it could have ended any consideration given to race in college admissions. Instead, he said, the court “rendered a huge national reprieve for racial inclusion.”

Critics denounced the ruling, saying it condoned discrimination on the basis of skin color by allowing colleges to consider race as a factor when choosing students.

“Today’s ruling is a blow to everyone’s right to fair and equal treatment under the law regardless of one’s racial or ethnic background,” said Joshua P. Thompson, principal attorney at the Pacific Legal Foundation, which filed seven legal briefs arguing that administrators should not consider race in admissions. “Teaching students that they are defined by their race should not be part of the lesson plan at any public university.”

The court’s decision was something of a surprise after highly charged oral arguments in December suggested the justices were skeptical of the policy . Antonin Scalia — who died two months later — generated controversy when he questioned whether black students might fare better at “a less-advanced school, a slower-track school, where they do well.”


The case centered on the two-tiered admissions system at the University of Texas.

In the first tier, the university offers admission to all students who graduate from a Texas high school in the top 10 percent of their class. In the second tier, it fills the remainder of the incoming freshman class by evaluating students’ from Texas and elsewhere based on their test scores and grades, as well as numerous other factors, including their race — a similar mix of criteria used by many colleges across the country.

Abigail Fisher, a Texas student who was not in the top 10 percent of her class, sued the university in 2008, saying she had been unfairly denied admission to the freshman class because she is white.

“I am disappointed that the Supreme Court has ruled that students applying to the University of Texas can be treated differently because of their race or ethnicity,” Fisher, who has since graduated from Louisiana State University, said Thursday in a statement. “I hope that the nation will one day move beyond affirmative action.”

Ultimately, Justice Anthony M. Kennedy provided the crucial swing vote to uphold Texas’s policy. In an opinion signed by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor, Kennedy wrote that universities are largely defined by “intangible qualities” that cannot be measured but “make for greatness.”


“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,” Kennedy wrote. “But still, 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.”

Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. dissented.

“UT’s crude classification system is ill suited for the more integrated country that we are rapidly becoming,” Alito wrote in his dissent.

Justice Elena Kagan recused herself because, as solicitor general, she worked on the Obama administration’s legal brief supporting the University of Texas.

Scalia’s death in February did not likely affect the decision because had he voted with his fellow conservatives, as was all but certain to do, the resulting 4-4 deadlock would have upheld a lower court ruling allowing Texas’s policy to stand.

But that lower-court case “would have set no precedent for the rest of the nation, leaving open the possibility that all race-sensitive programs would in the future be held unconstitutional,” Tribe said. “Now, that possibility is finally foreclosed.”

Harvard and MIT, which filed legal briefs defending Texas’s policy, cheered the ruling.

“In today’s diverse society, it is more important than ever to be able to live, work, and interact with people with different backgrounds, life experiences, and perspectives,” said Harvard’s president, Drew Faust. The ruling, she said, “has upheld this integral value.”


MIT’s dean of admissions, Stuart Schmill, said the decision “reaffirms the value of diversity in higher education and our ability to achieve that diversity.”

Kumble Subbaswamy, chancellor of the University of Massachusetts’ flagship campus in Amherst, called the ruling “terrific news” for the state.

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