George E. Curry

In many instances, the U.S. Supreme Court’s recent affirmative action ruling upholding the University of Texas’ affirmative action program was overshadowed by a same-day order overturning President Obama’s executive order to ease illegal immigrants’ path to U.S. citizenship.

Affirming the university’s admission plan was notable because it squelched an ongoing challenge to affirmative action by well-financed conservative groups. Even more remarkable, the conservative-leaning court rendered the decision shy of its full nine-member participation, with no successor confirmed following the death of conservative Justice Antonin Scalia and liberal Justice Elena Kagan recusing herself from deliberation because of her previous involvement in the case as U.S. solicitor general.

The biggest surprise was that Justice Anthony Kennedy, a Ronald Reagan appointee, joined the other liberals on the court — Justices Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor — to form the 4-3 majority that said race may be used as one factor among many in building a diverse student body. Dissenting were Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Clarence Thomas.

“A university is in large part defined by those intangible ‘qualities which are incapable of objective measurement but which make for greatness,’” Justice Kennedy wrote, quoting from Sweatt v. Painter, a landmark 1950 U.S. Supreme Court ruling outlawing the University of Texas’ exclusion of African-Americans from its law school. “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.”

To conform to earlier high court rulings, the Texas legislature passed a new plan in 1997 for the University of Texas to admit all high school seniors who ranked in the top 10 percent of their graduating class. But the plan failed to sufficiently diversify the main campus at Austin.

Texas is about 38 percent Latino and 12 percent African-American. Under the 10 Percent Plan, 26 percent of the students admitted were Latino and 6 percent were African-American.

Under challenge was the part of the program that allowed race and ethnicity to be considered along with other factors to fill the slots not taken by the top 10 percent, which usually came to about 25 percent of each incoming class. No specific points were given for race.

Abigail Fisher, a white female from Sugar Land, Texas, applied for admission to UT in 2008. She did not rank in the top 10 percent of her class and university officials said even if no affirmative action program had been in place, she still would not have been accepted. Still, she sued, saying that race should never be used under any circumstances.

A lower court ruled against her, a ruling that was affirmed upon reaching the appeals court. Her case was appealed to the U.S. Supreme Court, remanded to the Fifth Circuit Court of Appeals, and accepted a second time, with the court’s recently ruling against her.

Justice Thomas, a staunch opponent of affirmative action, declared, “I write separately to reaffirm that ‘a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.’ The Constitution abhors classifications based on race because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.”

He added, “That constitutional imperative does not change in the face of a ‘faddish theor[y]’ that racial discrimination may produce educational benefits.’ “ 

This is not likely to be the final word on affirmative from the high court.

Lawsuits against Harvard University and the University of North Carolina, each prepared by Project on Fair Representation, the same conservative outfit that represented Ms. Fisher in the UT suit, , are making their way through lower courts and could end up before the U.S. Supreme Court.

If those cases reach the high court, they could well be decided by the results of the November presidential election.

Writing on Scotusblog.com, Lyle Denniston observed: “Depending upon who wins the presidential election in November, a Scalia successor could hold the balance of power on affirmative action in the future, even if Kennedy were to return to his prior skepticism about such uses of race in public policy decisions. Justices Breyer, Ginsburg, and Sotomayor might well have Justice Kagan with them in the future and might form a definite majority when a ninth Justice is on board — depending on presidential politics.”

The writer is president and CEO of George Curry Media.