Supreme Court Rules 4-3 for Affirmative Action

The use of race as a factor for admissions at the University of Texas at Austin is lawful, the U.S. Supreme Court ruled Thursday morning.

The 4-3 decision was a huge win for supporters of affirmative action admissions policies.

"A university is in large part defined by those intangible qualities which are incapable of objective measurement but which make for greatness," Justice Anthony Kennedy wrote for the majority. "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."

With former Justice Antonin Scalia's passing and Justice Elena Kagan having recused herself because of prior work on the issue while at the Department of Justice, the ruling holds the same precedential effect as a 5-4 decision.

At issue was the continued use of race-conscious affirmative action, which has been used for decades to address past inequities and offer students from disadvantaged minority groups – especially African-Americans and Latinos – a better chance at gaining access to college.

The case originated with Abigail Fisher, a white student who alleged she was discriminated against by the University of Texas at Austin because of her race, after the school rejected her application for admission in 2008.

The majority of the flagship university's freshmen slots, about 75 percent, are filled by the state's Top Ten plan, which guarantees admission to Texas high school students who finish in the top 10 percent of their graduating classes. To fill the other 25 percent, the school uses an admissions process that takes race into account, among other things.

The year Fisher applied, competition was unusually stiff and 92 percent of the class was filled through the Top Ten program. Fisher, as revealed in an in-depth analysis of the case from ProPublica, did not graduate in the top 10 percent of her class, and has maintained that in competing for the remaining 8 percent of seats, she was discriminated against because of her skin color.

"Although admissions officers can consider race as a positive feature of a minority student's application, there is no dispute that race is but a 'factor of a factor of a factor' in the holistic-review calculus," Kennedy wrote for the majority.

This is the second time the court heard the case. The first time, in 2013, the court in a 7-1 decision ordered lower courts to take another look at the challenge to the University of Texas's use of in its admissions process. The appeals court again ruled against Fisher, affirming the university's decision to use race as one factor considered in trying to diversify the student body.

Supreme Court watchers have warned over the last few months that a ruling made with a majority of four Justices invites a potential reversal by a new majority of five. However, a decision one way or the other was expected, largely because this was the second time the court heard the case and because many were quick to criticize the court's previous non-decision, arguing the Justices punted on the issue.

"A remand would do nothing more than prolong a suit that has al­ready persisted for eight years and cost the parties on both sides significant resources," Kennedy wrote in the majority opinion.

The opinion did, however, leave the door open to potential future legal challenges in reminding the University of Texas, and by default other schools that use race-conscious admissions policies, that its admissions process isn't necessarily the best way to address diversity.

"The Court's affirmance of the University's admissions policy today does not necessarily mean the University may rely on that same policy without refinement," Kennedy wrote. "It is the University's ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies."

The court's newest decision is sure to breathe new life into a small but growing movement to replace race-based affirmative action admission policies with preferential admissions for poor students. Such admissions practices are not yet common, but they're gaining traction at schools in the eight states that already ban affirmative action as a way to capture a similar demographic of students.

Indeed, Kennedy touches on this exact point in his opinion, perhaps a bit of a warning to University of Texas and others on how to think more broadly about race-conscious admission policies: "Formalistic racial classifications may sometimes fail to capture diversity in all of its dimensions and, when used in a divisive manner, could undermine the educational benefits the University."

Critics of preferential admission for poor students, however, argue that income-based policies and affirmative action aren't interchangeable and that eliminating affirmative action will significantly reduce the number of black and Latino students at the country's best schools.