Supreme Court Sends Affirmative Action Case Back To Lower Court

the u.s. supreme court on monday sent back a texas case on race-based college admissions to a lower court for another look. the court's 7-1 decision leaves unsettled many of the basic questions about the continued use of race as a factor in college admissions.

justice anthony kennedy, writing for the court, said a federal appeals court needs to subject the university of texas admission plan to the highest level of judicial scrutiny. the compromise ruling overturns the decision by the new orleans-based fifth u.s. circuit of appeals, which upheld the plan.

kennedy said the appeals court did not test the texas plan under the most exacting level of judicial review. he said such a test is required by the court's 2003 decision upholding affirmative action in higher education. justice ruth bader ginsburg was the lone dissenter. justice clarence thomas said he would have overturned the high court's 2003 ruling.

the landmark case involves abigail fisher, a white texan who sued the university after she was denied a spot in 2008. fisher has since received her undergraduate degree from louisiana state university. the challenge to the texas plan gained impetus partly because the makeup of the court has changed since the last time the justices ruled on affirmative action in higher education.

in 2003, justice sandra o'connor wrote the majority opinion which held colleges and universities can use race in their quest for diverse student bodies. o'connor retired in 2006, but her replacement, samuel alito, has shown himself to be more skeptical when considering race as factor in a potential student's desire for higher education.

fisher's lawsuit was also fueled by a 1990s state law signed by then, governor george w. bush. the law automatically offers about 75% of its spots to graduates in the top 10 percent of their texas high schools - as was fisher. the admissions program has since been changed; now, the top eight percent gain automatic admission. 

according to university statistics, over 80% of black and latino students who enrolled at the flagship campus in austin in 2011 were automatically enrolled. both sides acknowledge the use of race is modest. in all, black and latino students encompass over 25% of the incoming freshman class. white students constituted less than half the entering class when students of asian descent and other ethnicities were added in.  

the university said the extra measure of diversity it gets from the slots outside automatic admission is crucial because too many of their classrooms have, at best, only token minority representation. but at the same time, texas argued race is one of many factors considered, and whether race played the key factor is too impossible to tell.

the Obama administration, 57 of the fortune 100 companies, as well as large numbers of private and public colleges backed the texas program. one of the benefits of affirmative action, the administration said, is it creates a pipeline for diverse officer corps it called "essential to the military's operational readiness." in 2003, the court cited the importance of a similar message from military leaders.