"Race may not be considered unless the admissions process can withstand strict scrutiny," Kennedy stated.
But in ruling that the U.S. Court of Appeals for the Fifth Circuit had failed to apply "strict scrutiny" in reviewing the University of Texas's admissions process, and in sending the case back for further review, the Justices made it a good deal harder for other colleges to justify similar policies.
In this case, Justice Kennedy said, the Court of Appeals for the Fifth Circuit did not apply strict scrutiny to the Texas plan to see how its process actually worked, but largely accepted the university's "good faith" judgment.
Though there is some adverse precedent on the books, e.g. Rosario v. Rockefeller, 410 U.S. 752 (1973)(upholding New York's exclusionary election rules for "preservation of the integrity of the electoral process"), closed primaries likely would not satisfy modern concepts requiring strict scrutiny of First Amendment violations.
Justice Powell shaped a classic transitional decision that said that affirmative action plans pass strict scrutiny (and are constitutional) only when race would be a factor in the admissions process, and not the entire selection factor (i.e. quotas).
"Strict scrutiny," Justice Kennedy wrote, "does not permit a court to accept a school's assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice".
"Because of the profound responsibilities the position entails and the independence it requires, it can only be filled by someone who has been subjected to the strictest scrutiny under the process required by the Constitution," the letter reads.
"Strict scrutiny, intermediate scrutiny, blah blah blah blah.
The strictest standard is called, unsurprisingly, "strict scrutiny".
"Strict scrutiny is a heavy burden.
