The Supreme Court just handed affirmative action supporters a major victory

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The Supreme Court upheld a race-based admissions program used by the University of Texas on Thursday, beating back a challenge that could have led to the end of colleges considering a student's race in their admissions processes.

Justice Anthony Kennedy, joined by justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, ruled in favor of UT in a case that has been dragging on for years. The Court's more conservative judges—Chief Justice John Roberts, Clarence Thomas, and Samuel Alito, dissented—saying they would have declared the admissions program unconstitutional.


Justice Elena Kagan, who worked on the case as solicitor general, recused herself from the decision.

The 4–3 decision in the case—known as Fisher v. University of Texas at Austin—appears to be a compromise of sorts. Kennedy, the most centrist justice on the Court, required the university to continue to assess the importance of race-based admissions in creating a diverse student body, and seemed to leave the door open for future challenges to the use of race in college admissions. "Through regular evaluation of data and consideration of student experience, the University must tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest," Kennedy said.


But the opinion also notes that "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."

The saga of the case began in 2008, when Abigail Fisher, a white woman, sued UT arguing that she was declined admission because of her race. The university guarantees admission to in-state students graduating in the top 10% of their high school class and then admits other students on a holistic basis that takes into account grades, test scores, essays, and an applicant’s race and socioeconomic status. The 2003 case Grutter v. Bollinger allowed the use of race in that kind of holistic admissions process.

Fisher was not in the top 10% of her class. But she claimed that if race wasn't a part of the holistic process, she could have got in.

In previous years, the Fisher case has bounced back and forth between lower courts and the Supreme Court. Lower courts sided with the university, but in 2013 the Supreme Court—with Kennedy writing the opinion—sent it back and ordered appeals courts to be more skeptical of the university’s program. That ruling was based on the idea of strict scrutiny, that the government has to show a compelling interest for doing what it does when it comes to constitutional rights.


In 2014, a three-judge panel of the Fifth Circuit Court of Appeals did as Kennedy asked and reheard the case, but essentially came to the same decision as they had previously: that the university had a good reason to include race in its admissions process. “To deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience,” Judge Patrick E. Higginbotham wrote.

Finally, in June 2015, the Supreme Court justices decided that they would rehear the case—leading to today's decision.


In his latest opinion, Kennedy—who essentially switched sides between 2013 and 2016—seemed to be almost tired of dealing with the case. "A remand [to a lower court] would do nothing more than prolong a suit that has already persisted for eight years and cost the parties on both sides significant resources," he wrote. "Petitioner long since has graduated from another college, and the University’s policy—and the data on which it first was based—may have evolved or changed in material ways."

The Court's conservative judges dissented, saying that they would have stricken down the university's program. In a 50-page opinion, Alito declared that the university had not met its burden to prove that the admissions program did not violate the Constitution. "Even though UT has never provided any coherent explanation for its asserted need to discriminate on the basis of race, and even though UT’s position relies on a series of unsupported and noxious racial assumptions, the majority concludes that UT has met its heavy burden," he wrote. "This conclusion is remarkable—and remarkably wrong."


Thomas filed a one-page opinion of his own, arguing that the use of race in college admissions is categorically unconstitutional.

This was one case where the death of Justice Antonin Scalia may have had an effect. If Scalia had also dissented, the court would have been deadlocked 4–4, which means the appeals court ruling in favor of the university would have been upheld, stopping the Court short of setting a precedent.


Casey Tolan is a National News Reporter for Fusion based in New York City.