How Affirmative Action Survived The Roberts Court

The U.S. Supreme Court punted Monday on what could have been a major ruling on the future of affirmative action. In what is arguably the narrowest ruling that could have been expected from the Court that claimed in a plurality opinion that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” the justices rejected the lower court’s approval of the University of Texas at Austin’s affirmative action plan. The decision means the trial court will have to review UT-Austin’s affirmative action plan once again — this time with even more skepticism. The constitutionality of race in university admissions, however, survived.

At issue was a University of Texas at Austin plan with two parts: First, the university automatically admits Texas students in the top ten percent of their high school classes. After that, it considers the remaining applications on a case-by-case basis, considering a host of factors that could enrich and diversify the university experience, one of which is race. As the lower court described Texas’ plan, race is considered as a “factor of a factor of a factor of a factor.”

The U.S. Supreme Court has previously upheld the consideration of race to achieve diversity in university admissions, but many court-watchers expected the court to erode this principle at least in part, and the justices reinforced this suspicion with their hostile comments during oral argument. In today’s ruling, however, they appear to have cobbled together a five-justice compromise that foreclosed the demise of affirmative action. Democratic appointees Stephen Breyer and Sonia Sotomayor joined the majority opinion by Justice Anthony Kennedy. Justices Antonin Scalia and Clarence Thomas took separate, more conservative positions. The majority opinion left in place the holding that diversity is a compelling state interest, and that universities may consider race as a factor in achieving that goal, so long as their policy is “narrowly tailored.”

The catch is that today’s ruling may have made it even more difficult for universities to prove that their policies are “narrowly tailored.” After all, the last decision to consider this standard ten years ago explicitly suggested that a policy like UT-Austin’s would pass muster, with Justice Sandra Day O’Connor writing that even when universities implement a percentage plan, “they may preclude the university from conducting the individualized assessments necessary to assemble a student body that is not just racially diverse, but diverse along all the qualities valued by the university.”


Because a U.S. Supreme Court with a different ideological divide seemed to have endorsed a plan much like the one implemented by the University of Texas, many predicted that the U.S. Supreme Court granted review of this latest challenge to reconsider that standard. Instead, Justice Anthony Kennedy left the standard in place, but instructed the trial judge to be even more skeptical toward UT-Austin in its application of this standard:

The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If “‘a nonracial approach . . . could promote the substantial interest about as well and at tolerable administrative expense,’” then the university may not consider race.

According to Justice Ruth Bader Ginsburg, the U.S. Court of Appeals for the Fifth Circuit arguably already applied such scrutiny, and she cautions in a lone a dissent that even greater skepticism may drive universities toward more covert action:

I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious. As Justice Souter observed, the vaunted alternatives suffer from “the disadvantage of deliberate obfuscation.” … if universities cannot explicitly include race as a factor, many may “resort to camouflage” to “maintain their minority enrollment.”

As demonstrated by the raft of amicus briefs filed in the case, universities, businesses, and political leaders have a strong continuing interest in achieving diversity. Statistics after state bans on affirmative action have shown that numbers of minority students dropped precipitously immediately after bans were implemented.


Today’s ruling allows universities to continue implementing diversity plans, but it does not preclude these state bans. In another case that once again threatens the future viability of affirmative action, the U.S. Supreme Court will review a state ban next term.