Supreme Court... Tougher Scrutiny of Affirmative Action Plans

by: Les Carpenter
Rational Nation USA
Liberty -vs- Tyranny

A perfectly sensible and right decision by the SCOTUS... Even given the fairly obvious left bias throughout the article.

USA TODAY - WASHINGTON — The Supreme Court drew new limits on colleges' use of affirmative action Monday, saying that although racial preferences remain constitutional, they are permissible only if schools can first show that there are "no workable race-neutral alternatives."

The court's 7-1 decision, written by Justice Anthony Kennedy, suggests that public schools can use affirmative action only as a last resort for creating a diverse student body, and raises the prospect that colleges will face a tougher burden of justifying them in the future.

But the justices stopped short of issuing a broader decision either fully cementing or eliminating schools' ability to take account of an applicant's race.

Kennedy wrote that public universities could adopt affirmative action plans only if they can demonstrate that "no workable race-neutral alternatives would produce the benefits of educational diversity."

The decision came in a closely watched challenge to the University of Texas at Austin's admissions policy that is based, in part, on applicants' race. But the justices declined to decide whether the university's program met that tough new standard.

Instead, they said that a lower federal court had acted too deferentially by, in essence, taking the university's word for the fact that such preferences were necessary. They instructed the lower court to hear the case again, and this time to require the university to prove that it had no other way to assemble a diverse student body.

"Strict scrutiny does not permit a court to accept a school's assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice," Kennedy wrote. "The university must prove that the means chosen by the university to attain diversity are narrowly tailored to that goal."

Kennedy was joined by the court's conservative justice and two of its liberals, Justices Stephen Breyer and Sonia Sotomayor. Justice Elena Kagan did not participate in the case.

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The case hearkened back to 1950, when Heman Sweatt sued the university after being denied admission because he was black. As his attorney, Sweatt chose Thurgood Marshall, who would go on to become the high court's first black justice. He won the case, marking the first time the court had ordered a black student admitted to an all-white institution.

Since then, colleges and universities have become more integrated. In Grutter v. Bollinger, the court's 5-4 decision upholding the Michigan law school's limited use of affirmative action, O'Connor predicted, "The court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

That case wasn't a slam dunk for the civil rights movement. At the same time, the court ruled 6-3 against the undergraduate school's more numerical system of racial preferences. And O'Connor's decision upholding the law school's racial preferences included a dissent from Kennedy, now the swing vote on the court.

"Preferment by race, when resorted to by the state, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality," Kennedy said then.

Four years later, in a decision that barred voluntary integration programs in the Seattle and Louisville public schools, Chief Justice John Roberts issued one of his most oft-quoted lines: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Two members of the court were being watched closely in this case: Justice Thomas, the lone black justice, who has written that his Yale Law School degree was devalued by racial preferences; and Justice Sonia Sotomayor, the lone Hispanic, whose recent book, My Beloved World, credits affirmative action for giving her access to Princeton and Yale.

In the end, the ruling was so narrow that both Thomas and Sotomayor signed on.

Kagan recused herself from the case, presumably because she was involved with it during her tenure as solicitor general at the Justice Department in 2009-10. {Read More}

Via: Memeorandum