UT wins affirmative action case in second high court visit

It’s Justice Anthony Kennedy’s world, and Americans are just living in it.

The justice, often a swing vote, did a surprising about-face on the issue of affirmative action today, joining the liberal justices (sans recused Justice Elena Kagan) in upholding the University of Texas (UT) at Austin’s admission policy that uses race in a personal achievement index.

This case came before the Supreme Court in 2012, and at that time Kennedy joined the conservatives in ruling that UT hadn’t shown enough compelling evidence to justify its race-based admissions policy. It hadn’t met what the court calls “strict scrutiny.” The justices sent the case back to the lower courts. But the lower courts affirmed the university’s policy again, and when the case came back this time, Kennedy joined the liberals in affirming UT.

Kennedy’s previous votes didn’t show him to be against affirmative action entirely. But he thought race should be used rarely as an admissions factor, and courts should closely monitor it.

“Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination,” he wrote in a dissent to a 2003 Supreme Court decision that upheld affirmative action, Grutter v. Bollinger. Many thought, based on Kennedy’s 2003 dissent and the initial ruling on this case three years ago, that he would join conservatives here in “fixing” Grutter. But instead, he affirmed it. Kennedy said the university couldn’t come up with any race-neutral approaches that achieved its goal of diversity.

In 2003, he chastised the majority for not applying strict scrutiny to the University of Michigan Law School’s admissions program.

“The court, in a review that is nothing short of perfunctory, accepts the University of Michigan Law School’s assurances that its admissions process meets with constitutional requirements,” he wrote.

But today Kennedy took a different approach.

“Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission,” he wrote.

Justice Samuel Alito penned a fierce, 50-page dissent on behalf of himself, Chief Justice John Roberts, and Justice Clarence Thomas, in which he quoted Kennedy’s own words.

“Something strange has happened since our prior decision in this case,” Alito wrote. “UT failed to do what our prior decision demanded. The university has still not identified with any degree of specificity the interests that its use of race and ethnicity is supposed to serve.”

UT’s admissions policy is odd, and other universities are likely to proceed with caution in their race-based admissions policies because Kennedy emphasized his ruling applied to a unique situation. UT accepts anyone from the top-10 percent of a graduating class, part of an effort to bring in more racial minorities. The conservative justices accept that racially neutral part of the policy. But on top of that, the university includes race in a “personal achievement index” that tallies points for admission.

Alito, who read a summary of his dissent in a mark of his displeasure, said UT’s admissions plan is a bid to avoid the “wrong kind of African-American and Hispanic students” because the university has said the top-10 percent plan is insufficient to bring in the children of affluent African-Americans and Hispanics who might be at higher-performing schools.

That assumption, Alito wrote, is that “the African-American and Hispanic students admitted under the race-neutral component of UT’s plan were able to rank in the top decile of their high school classes only because they did not have to compete against white and Asian-American students. This insulting stereotype is not supported by the record.”

The majority decision “licenses UT’s perverse assumptions,” he said, which is exactly what courts are trying to prevent by applying strict scrutiny to race-based admissions policies.

“What the majority has now done … is simply wrong,” Alito concluded.