Affirmative Action In the Clear, for Now

June 24, 2013— -- The Supreme Court has sent an affirmative action case about the University of Texas' admissions policy back to a lower court to decide.

The court affirmed 7-1 the use of race in the admissions process as a means of creating a diverse campus. But, it also said the university will need to prove there is no "workable" race-neutral alternative that would provide the same educational benefits of diversity.

Justice Anthony Kennedy said the lower court erred when it decided that the university affirmative action program met constitutional standards because it was adopted "in good faith."

The court didn't strike down affirmative action, so it's not necessarily a bad sign for groups like the American Council on Education that support the policy.

But, it's definitely something of a good sign for plaintiff Abigail Fisher, a Caucasian woman who claimed the school discriminated against her after it rejected her application. The university will now have a harder time proving that their admissions criteria are constitutional.

Currently, the University of Texas uses a "top 10 percent" rule that says students graduating in the top 10 percent of their Texas high school class are admitted to in-state public schools. The remaining space - about 30 percent of the entering class at the University of Texas - is filled using race and ethnicity as a factor.

"We will continue to defend the University's admission policy on remand in the lower court under the strict standards that the Court first articulated in the Bakke case, reaffirmed in the Grutter case, and laid out again today. We believe the University's policy fully satisfies those standards," University of Texas at Austin President Bill Powers said in a statement after the ruling. "Today's ruling will have no impact on admissions decisions we have already made or any immediate impact on our holistic admissions policies."

Critics of that policy, including Fisher, say it creates a disadvantage for students who come from high-performing schools, but are not among the top ten percent there. They may rank lower but may be just as qualified as other students in the top 10 percent of lower-performing high schools.

"The Supreme Court has established exceptionally high hurdles for the University of Texas and other universities and colleges to overcome if they intend to continue using race preferences in their admissions policies," Edward Blum, director of the Project on Fair Representation, a foundation that provided counsel to Fisher, said in a statement. "It is unlikely that most institutions will be able to overcome these hurdles. This opinion will compel the Fifth Circuit to strike down UT's current use of race and ethnicity."

"I am grateful to the justices for moving the nation closer to the day when a student's race isn't used at all in college admissions," Fisher said in a statement.

According to the Associated Press, more than eight in 10 African-American and Latino students who enrolled at the University of Texas' flagship campus in Austin were automatically admitted.

Back in 2003, the Supreme Court ruled that public universities could use race to ensure they admitted enough minority students, but the makeup of the court is different now and the court leans more conservative.

Justice Elena Kagan, who served as solicitor general under President Barack Obama, recused herself during today's vote. And the Obama administration had urged the court to uphold affirmative action.

The ruling will not impact private colleges and universities that have somewhat greater latitude to use race as a factor in admissions.

The Supreme Court is set to examine another affirmative action case in the fall that centers around a Michigan law that prohibits colleges in the state from considering race in public college admissions. A U.S. Circuit Court of Appeals said the Michigan law created burdens on racial minorities and that it violated the 14th Amendment guarantee of equal protection. But conservatives, including Michigan's Republican Attorney General Bill Schuette, have argued that using race as an admissions factor is wrong, and that decisions should be based on merit.

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