The U.S. Supreme Court did not outlaw affirmative action in a widely-anticipated opinion today, instead issuing a narrow ruling that sends the University of Texas’ college admissions program back to a lower court for reconsideration.
In a 7-1 opinion, in which Democratic-leaning justices Sonia Sotomayor and Stephen Breyer joined the Court’s five conservatives, the Court did not rule on the broader question of whether race should ever be considered in college admissions.
Instead, the Court argued that the lower courts did not properly apply prior Supreme Court precedents in examining the case. In particular, the Supreme Court said lower courts had not applied “strict scrutiny” to the University of Texas, which uses race as a plus factor in its admissions policies.
The Court called for the Fifth Circuit Court of Appeals to examine the University of Texas’ program under that strict scrutiny, arguing the lower court had not in its original ruling.
The ruling is something of a surprise. The Court has long been divided between its liberal and conservative swings on affirmative action, and it was expected this would be a case in which those divides were illustrated, with the conservatives repeating their call for ending all consideration of race in public life, while the Court’s liberals defending affirmative action.
Instead, the Court effectively punted on the issue. At least for now, universities with admissions programs that consider race as a plus factor, but don’t have racial quotas, will be allowed to continue those.
At the same time, further litigation on affirmative action is very likely across the country with this ruling, because the Court did not defend the University of Texas, which had argued its admissions program was designed exactly the way the Supreme Court said it should be in the Court’s last ruling on affirmative action. That admissions program considers race, but does not automatically give points to people who are black or Hispanic, a policy the Court said in 2003 is unconstitutional.