In a decision that could narrow the use of affirmative action in American education, the U.S. Supreme Court today ruled that a federal appeals court was wrong to dismiss a case arguing that the University of Texas illegally discriminated against a white college student when it rejected her application for admission.

In a 7-1 ruling written by Justice Anthony Kennedy, the court that Abigail Fisher of Sugar Land should have been able to present her case to a federal appellate court. She argued that she was illegally denied entry because the state university considered her race as part of a package of factors in the admissions process for students who fail to meet UT’s automatic acceptance standard.

“The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity,” Kennedy wrote.

Justice Ruth Bader Ginsburg was the sole dissenter.

Justice Clarence Thomas, in a concurring opinion, said he would have overturned the landmark 2003 case upholding affirmative action.

Justice Elena Kagan recused herself because of her involvement in the case as President Obama’s solicitor general.

The court vacated the Fifth Circuit ruling and remanded it to lower courts for further action. According to Amy Howe of SCOTUSblog.com, Kennedy held that “because the Fifth Circuit did not hold the university to the demanding burden of strict scrutiny articulated in Grutter and Bakke, its decision afffiming the district court’s grant of summary judgment was incorrect.”

Fisher argued that affirmative action in college admissions, as practiced by UT, is an unfair, simplistic and outdated method to remedy the evils of twentieth century American Apartheid.

The high court’s decision today postpones a final showdown over affirmative action in college admissions — a hot button subject for nearly four decades. The Fisher case will now wind its way back through the federal judiciary and may return to the Supreme Court in 2014 or 2015.

The Texas case, which was expected by most constitutional scholars, could jeopardize the future of affirmative action in college admissions. The university was on the defensive from the moment the high court accepted the case because four of its nine members have previously expressed hostility toward most forms of preference based on skin color or ethnic background.

A hot-button issue for three decades, racial preference in the admissions process arose again when Fisher sued the school after being denied admission to the 2008 freshman class. She argued that the university should not be permitted to consider race or ethnicity as a factor in its self-described “holistic review” of applicants’ merits.

A federal district court and appeals court both found that Fisher failed to prove the UT scheme illegal, but the U.S. Supreme Court reversed the lower courts’ decisions.

To win the case, the university’s lawyers needed to convince swing conservative Justice Anthony Kennedy. But from the time of oral arguments in October, it was a difficult sell. At the time, Kennedy said the university was arguing “is that what counts is race above all.”

“You want underprivileged of a certain race and privileged of a certain race, ” Kennedy told UT lawyer Gregory Garre.

UT strongly defended its way of evaluating prospective students, arguing that affirmative action is still a useful tool in building diverse student bodies. Most of UT’s freshman class is admitted through an automatic process that used to be known as the 10 percent rule, which guaranteed acceptance to any student graduating in the top 10 percent of his public high school class.

Although the law was modified in 2009 so that the percentage of those automatically eligible varies slightly, the effect was to significantly increase the number of minority students enrolled. But UT officials felt that total was well short of what was desired, especially for African American students.

The problem, both for the school and for the justices reviewing the current case, is how much diversity is desirable and, more importantly, legally permissible.

“There has to be a logical endpoint to your use of race, ” Chief Justice Roberts said to UT’s Garre during oral arguments. “What is the logical endpoint? When will I know that you’ve reached a critical mass?”

Garre said the school looks carefully at enrollment data, especially for black students. When the 10 percent plan was implemented, black enrollment dropped to 3 percent. It has remained low even as Hispanic enrollment has gone up.

“I think we all agree that 3 percent is not a critical mass, ” Garre said.

Liberal justices noted that the Texas program is similar to one endorsed by the high court in the 2003 case of Grutter v. Bollinger, a landmark ruling that has guided colleges’ use of racial preference in admissions over the past decade.

“It seems to me that this program is no more aggressive than the one in Grutter, ” Justice Ginsburg said. during oral arguments. “In fact, it’s more modest.”

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*Tim Powers is an attorney licensed to practice law by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any specific legal question you should directly consult an attorney.

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