June 24, 2013

The Supreme Court just issued its widely anticipated decision in a major affirmative action case. And it sidestepped the core question at play: whether affirmative action policies are constitutional.

Last year, the Supreme Court took the case of Abigail Fisher, a young white woman who argued that her rejection from the University of Texas at Austin was because of her race, not her qualifications. “There were people in my class with lower grades who weren’t in all the activities I was in, who were being accepted into UT, and the only other difference between us was the color of our skin,” she said in a video explaining her argument. “I was taught from the time I was a little girl that any kind of discrimination was wrong. And for an institution of higher learning to act this way makes no sense to me.”

The large majority of students admitted to UT system come in under a program that gives seats to the top ten percent of students at all Texas high schools. For the remaining slots, a combination of factors are considered, of which race is one. In its defense, the University of Texas argued that — regardless of the existence of an affirmative action program — Fisher wouldn’t have been admitted. Her scores weren’t high enough. Race had nothing to do with it.

In its initial ruling, the Fifth Circuit Court came down in favor of the University of Texas, upholding the policy as meeting the standards established in earlier affirmative action cases, namely, that this was a good faith attempt to increase diversity among the student body. In taking the case, the Supreme Court was expected to overturn this, given the hostility of conservative justices like John Roberts, Antonin Scalia, and Clarence Thomas to affirmative action.

But, in a 7 to 1 decision, the Court vacated and remanded the case back to the Fifth Circuit, ordering it to reconsider the admissions standards of the University of Texas. In short, the Court is asking the lower body to reconsider its assumption of good faith on part of the University of Texas, and examine the procedures used to increase diversity, to see if they meet the established standard of strict scrutiny.

On the broader question of whether diversity is a compelling interest for government — whether the state can say it’s a good thing for schools to strive for racial diversity, and whether it’s constitutional to gear policy towards achieving that goal — the Court is silent.

For many observers, this decision came as a surprise. Between Fisher and the Voting Rights Act, the Supreme Court is poised to make major rulings on the government’s efforts to combat the lasting effects of racial discrimination. Given the ideological commitments of its majority, the assumption was that the Courts would — effectively — rule that racism is no longer an issue. If the Fisher decision is any indication, the Court might be treading more carefully than we think. The implications of this are that the Court might take a similar approach with the Voting Rights Act.

Those who want the government to continue combatting the lingering effects of racism can breathe a temporary sigh of relief. But since the court’s conservatives remain hostile towards affirmative action and policies designed deliberately to combat racial discrimination, it shouldn’t be a long sigh. The big questions remain unresolved.

Jamelle Bouie is a staff writer at The American Prospect, where he writes a blog.