2016 was the last time the court made a major affirmative action decision.
In 2016, indoors his last major positive discrimination case in higher education, the Supreme Court upheld an aspect of an idiosyncratic admissions program at the University of Texas at Austin. In doing so, it reaffirmed the court’s distinction in previous cases: that numerical quotas were illegal, but that taking into account race as one of many factors for achieving educational diversity was permissible.
The case was brought by Abigail Fisher, a white student who said the University of Texas denied her admission because of her race.
In Texas, students from about the top 10 percent of their high schools were automatically accepted into the public university system. Those policies did not account for race, but increased racial diversity, in part because so many high schools in the state were racially homogeneous.
Ms. Fisher narrowly missed that line at her high school in Sugar Land, Texas, then entered a separate pool of applicants who were admitted through a race-based system.
Ms. Fisher argued that Texas couldn’t have it both ways. After introducing a race-neutral program to increase minority admissions, she said, Texas couldn’t supplement it with a race-conscious program.
Judge Anthony M. Kennedy, writing for the majority, upheld the race-conscious program, saying courts should give universities substantial but not total leeway in devising their admissions programs.
“A university is defined in large part by those intangible ‘qualities which cannot be measured objectively, but which make for greatness,'” Justice Kennedy wrote, quoting from a groundbreaking desegregation case. “A university owes great deference in defining those intangible attributes, such as the diversity of its student body, which are central to its identity and educational mission.”
“Even so,” he added, “it remains an enduring challenge for our nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”