SCOTUS Last Issued a Major Decision on Affirmative Action in 2016

In 2016, in its last major case on affirmative action in higher education, the Supreme Court upheld an aspect of an idiosyncratic admissions program at the University of Texas at Austin. In the process, it reaffirmed the distinction the court had drawn in earlier cases: that numerical quotas were unlawful but that taking account of race as one factor among many to achieve educational diversity was permissible.

The case was brought by Abigail Fisher, a white student who said the University of Texas had denied her admission because of her race.

In Texas, students in roughly the top 10 percent of their high schools were automatically admitted to the public university system. That policy did not consider race but increased racial diversity in part because so many high schools in the state were racially homogeneous.

Ms. Fisher just missed that cutoff at her high school in Sugar Land, Texas, and then entered a separate pool of applicants who were admitted through a system in which race played a role.

Ms. Fisher argued that Texas could not have it both ways. Having enacted a race-neutral program to increase minority admissions, she said, Texas could not supplement it with a race-conscious one.

Justice Anthony M. Kennedy, writing for the majority, upheld the race-conscious program, saying that courts must give universities substantial but not total leeway in devising their admissions programs.

“A university is in large part defined by those intangible ‘qualities which are incapable of objective measurement but which make for greatness,’” Justice Kennedy wrote, quoting from a landmark desegregation case. “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.”

“But still,” he added, “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.”