The Supreme Court on Monday imposed a stricter test for affirmative action in college admissions—ruling that schools must prove “no workable race-neutral alternatives would produce the educational benefits of diversity.”
By a 7-1 vote, with one justice recusing herself, the court sent a case about the University of Texas’ admissions policy back to a federal appeals court for review — the Supreme Court’s equivalent of a grade of Incomplete.
The Supreme Court ruled that the lower court had not held the university to a “demanding burden of strict scrutiny.” Justice Anthony Kennedy wrote the opinion of the court.
The case was brought by Abigail Fisher, a white woman who applied to the university in 2008 and was denied, and claimed that her constitutional rights and federal civil rights laws were violated.
A Supreme Court ruling in 2003 allowed public universities to consider race to get a critical mass of minority students, but Justice Sandra Day O’Connor, who wrote that opinion, has since retired, and today’s court is more conservative.
The University of Texas admits about three-quarters of its students by guaranteeing a spot to any student who finishes near the top of his or her high school class. For the remainder of undergraduate admissions, race is considered as one of many factors.
Bert Rein, a lawyer for Fisher, told the justices at an oral argument last October that the university had not shown “any necessity for doing what they were doing” in its admissions policy.
“Race should have been a last resort,” he said. “It was a first resort.”
Chief Justice John Roberts pressed Gregory Garre, a lawyer for the university, over how much diversity was enough.
“The compelling interest you identify is attaining a critical mass of minority students at the University of Texas, but you won’t tell me what the critical mass is,” the chief justice said.
Later, he asked: “What is the logical end point? When will I know that you’ve reached a critical mass?”
Garre could not provide a direct answer but said later in the argument that the university sought to create “an environment where cross-racial understanding is promoted.” Previous court rulings prohibit outright quotas.
The Obama administration supported the Texas system. Solicitor General Donald Verrilli told the justices that the administration wanted “graduates who are going to be effective citizens and effective leaders in an increasingly diverse society, and effective competitors in diverse global markets.”
He was asked by Alito whether it was acceptable for the university to give a preference to black and Hispanic applicants from privileged backgrounds. Verrilli said that the university wanted to make individual decisions that “further the educational mission.”
“For example, they will look for individuals who will play against racial stereotypes just by what they bring: The African-American fencer, the Hispanic who has — who has mastered classical Greek,” he said.
Justice Elena Kagan, who worked on the issue while she was solicitor general under President Barack Obama, recused herself from the case.
This article originally appeared on NBCNews.com here.
Erin McClam
Pete Williams