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U.S. Supreme Court upholds UT-Austin’s affirmative action system

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In a major — and surprising — win for affirmative action supporters, the U.S. Supreme Court has upheld the University of Texas at Austin’s right to give a slight boost to black and Hispanic applicants. 

The 4-3 decision rejected Sugar Land native Abigail Fisher’s claim that she was unfairly discriminated against because she was white. She was denied admission into UT-Austin in 2008, but argued in a lawsuit that minority students who were less qualified got in over her. UT-Austin has defended its practice, saying its narrow consideration of race stood up to legal scrutiny. 

The majority opinion was authored by Justice Anthony Kennedy, who has been critical of affirmative action in the past. His decision to preserve UT-Austin’s system was narrow and not without caveats, but it keeps affirmative action legal nationwide for now.  

Read More The Price of Admission: A Series on the Fight Over the Top 10 Percent Rule

Supporters of boosting chances for minority students immediately praised the ruling.  

“I deeply believe in the benefits of diversity in education,” UT-Austin President Greg Fenves said on Twitter.  I’m pleased that SCOTUS has reaffirmed its importance.” 

Hillary Clinton, the presumptive Democratic nominee for president, called the case “a win for all Americans.” 

“It means that universities can continue to make diversity and inclusion central goals of their admissions processes, and means our college campuses will continue to be places where young adults of all backgrounds can learn from each other,” she said in a statement. 

Opponents, meanwhile, decried the decision as support for an unfair and discriminatory admissions system. 

“Less than 10 years ago, the Supreme Court said that ‘[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.’ Sadly, the Court today has departed from that guiding principle,” Texas Attorney General Ken Paxton said in a statement. 

Under the legal framework upheld Thursday, universities are required to meet several legal tests to use affirmative action. They have to prove that the consideration of applicants’ race serves an educational benefit. And they have to show that there are no “race-neutral” ways of achieving that goal. 

Fisher claimed that UT-Austin failed to meet those expectations, arguing that the state’s “race neutral” Top 10 Percent Rule does a sufficient job of creating diversity at the university. The rule guarantees admission to any public university in the state to students near the top of their high school’s graduating class. Its goal is to level the playing field for applicants from inner-city, minority-dominated high schools with those of kids who graduate from wealthy schools where most students are white and students tend to do better on standardized tests.  

Three-quarters of the students UT-Austin admits each year are supposed to be automatically admitted. The rest are selected through a “holistic review,” and that portion is the group for which affirmative action applies. 

Fisher argued that the Top 10 Percent Rule was so effective that it made affirmative action unnecessary for the other pool of applicants. Kennedy did not rule on that point, but he noted that at the time of the lawsuit, UT-Austin’s use of affirmative action had “been in effect for only three years,” meaning the university didn’t have time to study its effects. 

“The University, however, does have a continuing obligation to satisfy the strict scrutiny burden: by periodically reassessing the admission program’s constitutionality, and efficacy, in light of the school’s experience and the data it has gathered since adopting its admissions plan.” 

That language seems to leave open future challenges to UT-Austin’s system, though the Fisher case in particular appears to be over.  

Future challenges could face a tougher audience in the Supreme Court, however. Justice Elena Kagan, a liberal-leaning judge, recused herself from the Fisher case because she worked on it while she was solicitor general. And there is a vacancy on the court that could soon be filled. Conservative Justice Antonin Scalia, who died this year, participated in oral arguments in the case. If he hadn’t passed away, he almost certainly would have been able to prevent this ruling.  

In a statement, Fisher said she was disappointed by the ruling, saying it allows UT-Austin to treat students differently because of their race. 

“I hope that the nation will one day move beyond affirmative action,” she said. 

The Texas Tribune collaborated with Reveal on a deeper look at the Top 10 Percent Rule and race in admissions at UT-Austin. Listen to our podcast here. 

Disclosure: The University of Texas at Austin has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.  

This article originally appeared in The Texas Tribune at

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