Supreme Court Orders Appellate Court to Re-Rule on Affirmative Action

This is this special report from ABC news. When I'm Tanya Rivero in new York and from an ABC news digital special report the Supreme Court has passed. On making a sweeping decision on the future of... See More

This is this special report from ABC news. When I'm Tanya Rivero in new York and from an ABC news digital special report the Supreme Court has passed. On making a sweeping decision on the future of affirmative action in America. The case ruled on today Fisher vs the University of Texas. Has been sent back to a lower court for further consideration with strict instructions from the justices in Washington. The ruling came in at seven to one Ginsburg in dissent Elena Kagan has recused herself from the case. We're joined now by ABC news's Terry Moran -- there Terry. Hi there good morning to you from a -- Supreme Court yes they give -- -- personal what was the lower court's ruling. And is it now expected that they will change that. Well the lower court said the University of Texas was permitted under the constitution. To use race is one criteria in the admissions of students. After -- They'd already admitted about 80% of their student population on what they call the top 10% program if you finished in the top and present your eyes -- Texas he got it. And they wanted to add. More diversity which is constitutional. And so they used. Applicants race as one criteria. And that the Supreme Court said today. Was not given sufficient scrutiny by the lower court that the suspicious thing to do under under our constitution using race for anything. And therefore the lower court needs to make sure and this is where the tough languages in a very gauzy opinion. Justice Kennedy says. The court must be satisfied. That no workable race neutral alternative. Would produce. The desirable educational diversity. You gotta show there's no other way. That's a little tougher on the school's. That are using these programs and so we'll see what the lower court does with that but but one at one. One -- piece of evidence that they didn't do a lot today. It was a seven to one decision if you got that many of these justices agreeing they're not going to be that kind of accurately -- little but about the dissent Ginsburg. What justice Ginsburg. Clearly. Is an advocate. Of the constitutionality. Of these programs and she said under our precedents. The lower court did the right thing. The University of Texas came and said here's our program here's why we're doing it here's how it works it squares with your law we aren't using a quota. We are using a numerical system we're taking into account the holistic. Attributes of each individual applicant and race and their background -- that -- is one of those justice Ginsburg said. That's what we've asked these colleges and universities to do the University of Texas did at the lower courts interpreted the law correctly I wouldn't send this back and. All art -- today we have sort of an anti climactic willing at that is going back and sat through the lower court. But what is at stake here ultimately -- -- this. A battle over who ultimately decides. How the university's -- the court for the universities themselves. That's a good way of putting -- this is really a struggle over what. Our colleges and universities and frankly are our places of employment in the government contracts all those. Things which have been affected by this effort to redress. The wrongs of hundreds of years of racial discrimination to continuing racial discrimination in our society. By the use of race. Who's going to decide that for decades the court has said. You can use race but they keep narrowing it. And because it bothers it bothers. A lot of Americans it's a deeply unpopular program. Polls show and at the end of the day. This court will be asked yea or nay for once and for all right they didn't do that today accord I mean I don't think there's anyone in this country that wants to use race as a as a ground for admission. But the question is whether it is still needed right -- but the question is. Can you give us a little more background on this case it certainly spent a lot of time in -- It did it's it's a young woman and Abigail Fisher. Was white woman young young woman applicant to the University of Texas. Says I said Texas has this program top 10% if you finish in the top 10% of your high schools you get in. To the university system that increased diversity. In the Texas. Colleges. To about 8%. Of the student population. The minority population the African American bodies of 10% in Texas so. After admitting 80% of the students. The last 20% this it will take race into consideration along with your family background are -- a military family. Are you like to see all these other things that they take into account will will also look at the individual's racial background. Abigail Fisher didn't get in she says that's unfair that's racism against me. A white applicant and I I don't think that's constitutional. And her case goes on -- bring up a good point and I think that there are other things are taken into consideration including legacy and perhaps how much -- family is donated to the school. So I'm not. Things aren't necessarily. There -- either. There's all kinds of things that that a school can legitimately take into account in admitting if you could run a 4440 senior 61230. Pounds. The school take that into consideration. It it to admit you it is but. They can't take into a calories and that's obviously because of our history of race and our constitution. Which is no person shall be denied equal protection of the laws based on race that's the fourteenth amendment and so. While that was written to combat the vicious white racism of segregation and and slavery. White applicants now believe. They are being disadvantaged because of their race and that's where we are absolutely now so could this case and up. Back at the High Court that -- got back in the lower part. It could. It could this is an issue that will come back to this court whether it's Abigail Fisher's case or whether it's somebody else's case at some point this court will have to. -- -- bite the bullet and say. Yes. Because of our history and because the way this this is being used it's -- or no let's be done with classifying each other on the basis of our race at the what's the timeline here over the Supreme Court specific -- of the lower court they have to start hearing this case right away. Well you know how courts work that together that the lower court we'll get this opinion. They'll read it that's not a lot of guidance in here and now go at it again. And it'll percolate that'll take several months. And middle percolate if it does back up here a year or so -- -- -- at the very least are the -- the wheels of justice grind exceedingly -- yes. Indeed they do but does this mean anything for affirmative action policies that American University now won't -- any changes. That's a great question because every university lawyer was looking at that these opinions waiting for them to see what they could do with their programs and there will be tinkering. Guarantee every university and college president in the country saying what's this mean for us. And they'll look at business -- you know what we have to show that we've tried every other alternative to get the diversity of our student population. That this court has said is a legitimate goal. For educational purposes. And we've tried everything else and so. We have to use race in this way it'll toughen the standards of various colleges for using -- and carried I want another case in question here at the University of Michigan Law School decision. Valve also on the line with or any mention of that. That's that that was the precedent the -- one of the last big opinions of justice Sandra Day O'Connor and what she said. We still need to use race in admissions. She said for about 25 years she's got to pick them a number out perhaps this was ten years ago -- he's got fifteen years left. They did not overturn that opinion they said that's still good law but you didn't interpreted tough enough go back to the drug. All right and back to the drawing board we go indeed well thank you Terry Moran at the Supreme Court. Thank you and we turnout ABC's Rick Klein at the DC bureau hi there Rick and we expect any reaction from the White House today. I think you're so. Is likely to see the White House silent on this that the president is a big supporter of affirmative action if they put out any kind of statement though why am I can't imagine they'd be getting that he tells given that this was a punt. As Terry pointed out a seven to one decision tells you about all you need to know about politics in this this is relatively noncontroversial. In that it's going to be sent to another -- -- whatever team he -- were reading whatever signals. They're gonna come out of this whatever policy changes come out of this I think it's clear that these things are gonna come back to the Supreme Court. And another year maybe two years and it would likely to see a lot of the political figures can hold their fire -- the answer. And -- President Obama made any major comment on this case previously. His administration waited they -- -- a friend of the court brief supporting our existing policies supporting the right of university's college the universities to use race. As a factor in admissions they want that precedent to stand. A lot of presidents Obama supporters aligns very much of the Democratic Party support from affirmative action generally there's an array of mostly democratic politicians. -- be the first to say are among the first acidity benefited from affirmative action policies earlier in their career the Castro Brothers one as the mayor of San Antonio. The other one is a congressman from Texas -- say that they wouldn't of got into Stanford without. Affirmative action so it's credited with advancing the in the careers the lights set the legacies of of the range of major political figures. And it's been part of the cultural landscape for decades now and so it is a hot button issue and any tinkering with it -- -- draw. A widespread. Disapproval from one side approval from the other side but again because this kind of leaves things in place freezes things for a little while I don't expect -- to be huge political fallout in the short term. Shore -- -- -- but now that the case is back in the lower courts is this debate over affirmative action. Effectively put on hold for awhile. Yes but it'll be back -- only a short -- -- as -- -- wheels of justice are slow but they are continuing to move there is no doubt that whatever result his -- the state level in Texas is gonna end up back. Before the Supreme Court because we know that these issues with the changing court with changing society with changing times. And it back in this case the way that they the president was written -- anticipated that time were race would no longer have to be used. As a factor in addition the Chief Justice John Roberts is written before -- the way to stop discriminating based on race is the stop discriminating based on race so there's there's like Cole -- segment of the justices -- very much wanna be rid of affirmative action there's there's a different coalition that could emerge that would again strict -- -- make -- more strict in terms of the interpretation make it harder colleges and universities. But clearly this is on the and it's moving a society -- Right I -- I would think that everyone holds that as the utopian goal the question is have we achieved that yet. Now the justices have by pretty significant majority asked the lower court to reconsider their decision. We have this issue pointed now mean the pressure seems to be on the lower courts to be more pointed and more careful in their decision. That's right it's easily -- the High Court said looking -- just kind of weave this through with a lower court so. Next thing you look at this make sure that race was actually. The only way to they could do it as in this case. Very important to -- Texas has this this 10% rule which does bring diversity is that it is a constitutional way and undoubtedly constitutional way to bring diversity to their ranks the -- if you would -- high school in Texas are in the top 10% of the class. Where that is the poorest district or those of the richest district. The all white district although all minority district in an inner city of Houston or Dallas or Austin or San Antonio. If you getting into the University of Texas to the biggest and most -- to state school. In that system the question is whether they need another layer on top of that none of -- explicitly race based affirmative action whether that is among the the vast menu that things are allowed to take into consideration so look it's interesting on this the public. Seems to be over affirmative action if you ask them it's it's three quarters of the public saying they don't think race. Is a valid criteria. And that's -- -- actually held steady over the last couple decades whether we advance as a society whether the justices interpretation of the constitution. -- has evolved over time will be the question ultimately when it reaches the court again. Apple -- -- we are still waiting on two major decisions that gay marriage cases any sense of what we will get those rulings. It's not just that and we got to separate ones on -- on on on gay marriage one is. Whether a state has the right to ban gay marriage via the ballot boxes having California the other the federal government's. Attempt to define marriage as between only a man and a woman to this two separate ones on that and it is another one that reconsiders the voting rights act one of the signal achievements of the civil rights era. Whether that is is constitutional whether it needs to be tweaked to adjust to changing times the key questions there. We know that the court will be back tomorrow this is supposed to be the last week this report is in -- anticipation is that both of those major issues the two gay marriage opinions and the voting rights act will be resolved by Thursday at the latest. But the fun thing about being in the Supreme Court as the economy your own rules and tells -- otherwise that's is always the possibility that -- back. Again that is the Monday -- -- -- -- -- but it will be a busy week for us in the media every client Washington thank you so much. Thank you. And for more on the supreme court's ruling on affirmative action today go to abcnews.com. This has been an ABC news digital special report I'm Tanya Rivero in New York. This has been a special report from me.