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Supreme Court Sends Texas Affirmative Action Case Back to Lower Court

June 24, 2013 at 12:00 AM EDT
According to the Supreme Court, the University of Texas may continue using race as factor in some college admissions, but also found a lower federal court used the wrong standard to dismiss a challenge to the policy. Kwame Holman reports on the court's ruling and Jeffrey Brown talks with the National Law Journal's Marcia Coyle.

JEFFREY BROWN: It wasn’t an outright endorsement of affirmative action, nor an outright rejection. Instead, the U.S. Supreme Court threaded its way between those positions today.

NewsHour correspondent Kwame Holman begins our coverage.

KWAME HOLMAN: The upshot is, the court said the University of Texas may continue to use race as a factor in selecting some of its students, for now. The justices did say a lower federal court used the wrong standard to dismiss a challenge to the Texas system of affirmative action admissions.

Writing for the majority, Justice Anthony Kennedy said the use of race should be used only if “no workable race-neutral alternatives would produce the educational benefits of diversity.”

The Texas universities fill most of their slot by guaranteeing admission to the top 10 percent of every state high school class. That later was lowered to the leading eight percent. Race then is used as a consideration in admitting the rest of the student body. Under that system, Abigail Fisher, a white honor roll student, was denied admission in 2008.

In Washington today, she called the Supreme Court decision a victory.

ABIGAIL FISHER, Plaintiff: Of course, we’re happy with it. But — they gave us everything that we asked for. And I’m very confident that U.T. won’t be able to use race in the future. And it’s just — it’s been a great journey and a very great learning experience.

KWAME HOLMAN: University of Texas President Bill Powers said he also was encouraged.

BILL POWERS, President, University of Texas: There were a number of directions that the justices could have turned in today’s ruling. And this 7-1 ruling represents a positive outcome for this university, for the state, and for the nation.

KWAME HOLMAN: Today’s decision leaves a number of key questions unanswered in the long litigated field of affirmative action. And it marks the first time in a decade that the justices have weighed in on whether it’s constitutional for universities to use race when deciding who they admit.

In 2003, the high court, voting 5-4, allowed the University of Michigan Law School to factor race into admissions. The Texas case now returns to a federal appeals court in New Orleans.

JEFFREY BROWN: Marcia Coyle was, as always, in the courtroom for the decision, and joins us now.

Welcome back, Marcia.

MARCIA COYLE, National Law Journal: Thanks, Jeff.

JEFFREY BROWN: Now, to pick up on Kwame’s report, one way of looking at this is that the court decided not to rewrite affirmative action at this moment, right?

MARCIA COYLE: That’s correct, Jeff.

I think both sides take something away from here. One, those who were concerned that the court was going to backtrack on affirmative action, that didn’t happen. So it’s a victory in that sense. And then, on the other side, on Ms. Fisher’s side, the court did vacate the lower court ruling that upheld Texas’ affirmative action plan — use of affirmative action.

The court didn’t say that the program and use of race was wrong, but it told the lower court to go back and take a much closer look at it. So, in a sense, both sides live to fight another day.

JEFFREY BROWN: Well, so, to help us understand what that means, remind us about the 2003 decision.


JEFFREY BROWN: Where do things stand right now? What is allowed?


Diversity in higher education, the court has held since its Grutter decision in 2003, is a compelling interest, governmental interest. Today, the court reiterated that that still stands. However, the court said two things.

One, we know that whenever any government entity classifies someone or something by race, that the government’s use of race has to undergo the constitution’s most exacting review, what we call strict scrutiny. And that’s really a two-part test. Justice Kennedy wrote today first that the first part is, does the government entity have a compelling interest in using race?

He said, yes, diversity in higher education is a compelling interest, but the university — and the university is owed some degree of deference when it makes the judgment that it needs to do that. However, the second part of the test is that the use has to be narrowly tailored to achieve its objective. And that’s where the lower court fell down on the job, Justice Kennedy said.

You have — Justice Kennedy said the court has to make the university show two things under that, one, that every applicant is being considered individually and that race is not the defining character, and, two — and this is really critical — that there are no workable race-neutral alternatives.

JEFFREY BROWN: So, that part is clear enough, right?


JEFFREY BROWN: But then you have a decision like this. And then people, everybody is reading the tea leaves. Were their signals or interesting points either in Justice Kennedy’s or any of the other decisions or writing, not the decision, but their writings, that might provide a way forward or looking at where we go next?

MARCIA COYLE: Well, I think, first, you should know that Justice Kennedy was in dissent in the 2003 University of Michigan case. He felt the majority opinion, written by Justice Sandra Day O’Connor, didn’t apply strict scrutiny, especially the narrow tailoring part of the test, the way it should have.

So, today, he’s in the majority. And his view of strict scrutiny prevails. It’s going to be a somewhat tougher test for the universities to get over or to succeed in passing. So I think going forward, universities and even here at the University of Texas is going to have to work hard to show that there are no race-neutral alternatives available.

JEFFREY BROWN: But, on the other hand, the principle of diversity as a worthy goal stands.

MARCIA COYLE: Yes, it does.

And I think some of the organizations that are opposed to affirmative action will feel that they have another opening here in order to challenge other university programs that do use race as a factor.

JEFFREY BROWN: And now last thing on this, is, it goes back to the lower courts, right?

MARCIA COYLE: Yes, it does. It’s going back to the U.S. Court of Appeals for the Fifth Circuit, which oversees Texas.

And the court there will have to apply Justice Kennedy’s test to see if the university can pass it.

JEFFREY BROWN: OK. Now, also today, a couple of important decisions on workplace discrimination. Both went in favor of employers.

MARCIA COYLE: That’s correct.

There were two decisions. The court split ideologically 5-4. The conservatives were in the majority. And one decision was written by Justice Alito and the second one was again written by Justice Kennedy.

And what they did, basically, in those cases was to raise the bar on what employees have to do in order to prove discrimination under Title VII, which is our nation’s major job bias law. One of the decisions involved the definition of who is a supervisor.

JEFFREY BROWN: Yes, I remember. We talked about that when it was argued.


JEFFREY BROWN: And that’s one anybody can understand who works in a workplace, right?

MARCIA COYLE: Right. Right.

JEFFREY BROWN: Who is the boss? Who technically can hire, hire and fire?

MARCIA COYLE: That’s right. And that’s what Justice Alito said. He said that a supervisor is somebody who has been empowered to make a tangible employment decision, like hiring and firing.

And the court rejected the Equal Employment Opportunity Commission’s test for that, which was somewhat broader, that would involve co-workers who could direct your daily activities. And then the second case involved retaliation claims. And the court there imposed a higher standard of proof on employees who have been retaliated against because they either complained about discrimination or supported somebody else who was complaining about it.

JEFFREY BROWN: And these cases would fit into what is clearly being seen as a larger pattern for this court, siding with employers.

MARCIA COYLE: I think so.

I think the court has generally read retaliation under Title VII broadly. But, in this case — there have been a lot of complaints from businesses. Retaliation cases are the fastest growing category of discrimination cases. The court’s conservative majority generally doesn’t interpret our civil rights laws generously.

JEFFREY BROWN: Now, finally, in our last minute here, the court also agreed today to hear another case for next term, but this one a politically potent case, right?

MARCIA COYLE: Yes, yes, really interesting case.

The court said it would decide whether President Obama’s recess appointments to the National Labor Relations Board are constitutional. They were challenged by a bottling company out of the state of Washington, backed by the U.S. Chamber of Commerce. They claimed that the Senate wasn’t in recess when these appointments were made. That’s what the court will focus on, the scope of the recess appointments clause in the Constitution.

JEFFREY BROWN: And this happens to be President Obama, but this is something that this applies to many presidents who have made these kind of …

MARCIA COYLE: Oh, it does.


MARCIA COYLE: Yes. And it applies to more than the National Labor Relations Board.


MARCIA COYLE: In fact, at the same time, he appointed the head of the new Consumer Financial Protection board — bureau — sorry — bureau — and there are lawsuits around the country making these challenges.


MARCIA COYLE: So, it was accepted that — pretty much acknowledged the court would take the case.

JEFFREY BROWN: All right, that one for next term. And the rest of this week, we still have some big ones to come. Right?


JEFFREY BROWN: The court is back tomorrow.

JEFFREY BROWN: OK. Marcia Coyle, and we will have you back, no doubt.

MARCIA COYLE: Great. Great.


MARCIA COYLE: Thank you.

GWEN IFILL: We’ll have more on the affirmative action decision later in the program.