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Supreme Court Upholds University Of Texas' Affirmative Action Program

Abigail Fisher, who challenged the use of race in college admissions, speaks to reporters outside the Supreme Court on Dec. 9, 2015. The Supreme Court upheld the University of Texas' affirmative action program in a 4-3 decision.
J. Scott Applewhite AP
Abigail Fisher, who challenged the use of race in college admissions, speaks to reporters outside the Supreme Court on Dec. 9, 2015. The Supreme Court upheld the University of Texas' affirmative action program in a 4-3 decision.

In a 4-3 decision, the Supreme Court of the United States has upheld the University of Texas' affirmative action program.

"The race-conscious admissions program in use at the time of petitioner's application is lawful under the Equal Protection Clause," the court held.

For the second time, Abigail Noel Fisher, who didn't get into UT in 2008, was challenging the policy in front of the high court. Fisher, who is white, argued that she had been the victim of discrimination because of her race. She argued that students of color with the same credentials were accepted into the school, while she was denied admission.

Supreme Court Upholds University Of Texas' Affirmative Action Program
Supreme Court Upholds University Of Texas' Affirmative Action Program GUEST:Glenn Smith, professor of constitutional law, California Western School of Law

I am Maureen Cavanaugh. It is Thursday, June 23. Our top story Midday Edition, a member US up in court spoke on two major cases today, ruling in favor of one case and announcing a tie in the other. First case involved the admissions policy at the University of Texas at Austin. At the court upheld that schools affirmative action policy that in the much-anticipated ruling on President Obama's for deportation program for the parents of Americans known, the High Court double it deadlocked. I spoke with Glenn Smith constitutional law at the California Western school of law. Welcome to the program. Thank you. Let's start with the affirmative action really. This cases but for several years now. What was the issue in the way the Texas campus recognition? The question was whether in using race as one of several factors to fill about 25% of the freshman class at UT, whether UT had followed the court's earlier decisions that said they had to meet what is called strict scrutiny. They had to show that they had very serious educational diversity goals, they had to specify what those goals were and they had to show the plan was very carefully crafted to accomplish that. The majority opinion written by Justice Anthony Kennedy was not a ringing endorsement of the school's policy was it? No, really all the school needed to do was show that it satisfied the minimum requirements. What was interesting though, as you said not the first time this case has been up, the last time this case was up to court sent a pretty strong signal. They remanded the court back to the Fifth Circuit and sent a pretty strong signal they didn't think they have been rigorous enough. There really needed to closely scrutinize the universities rationale and the details of the program. This time, Justice Kennedy was less harsh and skeptical about the plan. In fact, Justice Alito and two other justices wrote a 51 page blistering opinion saying you asked UT to engage in this more seriously, you asked the lower courts to do it, none of them did and you are giving them a pass. The court is of course missing one justice. The death of Antonin Scalia and the refusal to vote on a replacement. This case had even fewer justices voting. Can you tell us about that? It is the last legacy of Justice Kagan's need to recuse yourself from cases that she participated in as the solicitor general. Census case as we said been around for several stages, even the she has been on the court for the wild, this is the last case that she had to stay out of. This was the one case, everybody is talking about a 4-4 Supreme Court, this is one case that was going to go one way or the other. 4-3, and Justice Kennedy was critical because he went with the three other more liberal or affirmative action supporting justices that made a majority to uphold the University of Texas and really to shine a pretty green light on affirmative action. The big winners in this case our universities and University Council and others who would worry that if this case I gone the other way and Justice Kennedy had been more skeptical, that they might face a whole around of lower court challenges. You see this as having broader implications for affirmative action policies? Yes. It is not the big decision about what level of review, it that we had a decade or so ago, but all of the signals about how rigorous or how deferential to the University should the court be, are important. They resonate through the lower courts and through the bar. Moving to the DACA tide, the 4-4 split it was expected. As one of the results, yes. The administration the only hope to resuscitate this program was to get 5-3. And Justice Kennedy joining the more reformed justices but 4-4 was adding very expected. Census is a tie, to any of the justices have to write anything about why they decided the way they did? No, if you look on the Supreme Court website, you see per curiam decision which means a decision by the court, affirmed by the court. No opinions, no dissents, no concurrences. It could have written them, but they chose there was no point in writing opinions that would just be one justices opinion about an issue that when it came back was point to have to be re-decided anyway. So when you say affirmed because there was a tie vote, it means that the decision of the lower court stands. The Fifth Circuit stands, this program has been in joined ever since it was created. It has never gone into effect. That decision stands. It is binding precedent but only in the Fifth Circuit. So all of the fascinating questions that we are going to hear a lot about in the presidential campaign about the President's authority over immigration and was he overstepping his bounds or not, and what could new presidents do and all that, none of those issues has the Supreme Court given us any guidance. We don't really know whether that was the issue that may be justices who voted against this vote against it or the justices who voted for it vote for it. Exactly. An addition to the big high profile presidential authority issue, there was a festival of issues about legal standing and administrative procedure and notice and comment rulemaking, Anton -- had the table for it with chemistry for years. But as a result it is inconclusive legally. I think practical matter of course it was the only hope for the administration to revive this and implemented during Obama's time -- remaining time and that hope is gone. Legally speaking know, when there is a full nine-member court, could conceivably this case be re-argued? It could. It is likely that this Executive Order could be rescinded by a Republican President, and maybe expanded or reissued by the new Democratic present. Depending on who is President, there will be a new order that almost certainly that order would be -- would go through courts and presumably go up to the Supreme Court in a couple of years, at which time I certainly hope there would be nine justices on the court. But it's all relatively speculative. I have been speaking with Glenn Smith, professor of constitutional law at California Western school of law. Thank you.

The first time around, the 5th U.S. Circuit Court of Appeals upheld the constitutionality of the program, but the Supreme Court sent the case back with new instructions to give the case a tougher scrutiny. The appeals court reconsidered and came to the same conclusion: UT's program was constitutional. Fisher appealed once again to the Supreme Court.

It's worth noting that UT's admission policy is complex: Most of its in-state students are admitted based on a policy of guaranteed admission to the top students of every high school. The rest are admitted using a combination of factors that include academic achievement and race and ethnicity. That part of the admissions process is what was being challenged in court.

Justice Anthony Kennedy, who wrote the majority opinion, said universities should be afforded wide latitude in achieving intangible "qualities which are incapable of objective measurement but which make for greatness."

Diversity is one of those qualities, Kennedy wrote, and so the University of Texas should be allowed to serve as a kind of laboratory to experiment with these kinds of policies.

"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," he wrote. With that in mind, Kennedy noted, the University of Texas should continually reassess its admissions program.


As might be expected, Justice Clarence Thomas wrote a one-page dissenting opinion that borrowed heavily from previous opinions. Thomas argued that race-conscious admissions are not permitted at all by the Constitution.

"The Constitution abhors classifications based on race because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all," Thomas wrote quoting a previous opinion.

Justice Samuel Alito wrote a 51-page dissent saying the majority had gotten this decision "remarkably wrong."

Alito argues that based on strict scrutiny, UT has to prove "why the discrimination is needed or how the discriminatory plan is well crafted to serve its objectives."

All UT did, he argues, is use "unsupported and noxious racial assumptions" to defend its position.

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