What the right-leaning court declined to do — presented with a case that some legal scholars likened to a hanging curveball over the middle of the plate — was swing for the fences.
Kennedy wrote that the lower court should have subjected the Texas admissions policy to “strict scrutiny,” a standard that “does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice.”
In other words, the court is raising the bar for Texas and other schools that practice affirmative action. But to the disappointment of those who hoped the court would drive a stake into the heart of affirmative action once and for all, Kennedy’s opinion acknowledged that there is still “a permissible way” for race to be considered.
That remains true for now, at least. And maybe for quite a while.
“The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity,” Kennedy reasoned.
This may prove to be a tough standard to meet. But the court effectively affirmed its previous rulings acknowledging that there are indeed “educational benefits” from having a diverse student body. The question, then, is not whether to seek diversity but how.
Conservative foes of affirmative action had hoped the court would take racial preferences entirely off the table as a means of encouraging diversity. To do so, the court effectively would have had to reverse a 2003 ruling involving admissions at the University of Michigan Law School, which prohibited racial quotas but allowed schools to use race as one of many factors.
Indeed, Justice Clarence Thomas — the lone African American member of the court — wrote that he would have voted to forbid any consideration of race. Still, he concurred in Kennedy’s ruling. Justice Antonin Scalia noted that the court was not asked in the Texas case to decide the fundamental question of whether race can ever be considered, and so he, too, concurred in the result.
The lone dissenter was Justice Ruth Bader Ginsburg, who wrote that she believed there was no need to raise the bar for universities seeking to practice affirmative action. Justice Elena Kagan recused herself from the case. The court’s other two liberals, Justices Sonia Sotomayor and Stephen Breyer, sided with Kennedy and the conservatives.
To those who had hoped for a more sweeping decision, it may look as if the court decided to punt. But my impression is that the ruling represents compromise and consensus, with a healthy dose of restraint.
A host of universities, corporations and other institutions filed briefs in the case supporting the University of Texas and arguing that diversity is not just a worthy goal but also a necessary one. The Obama administration argued that racial diversity is vital in the military to promote “operational readiness.”
Racial preference actually contributes relatively little to diversity at the university. The greater factor is the state’s policy guaranteeing admission to the top students in every high school — the so-called Top Ten Percent program. About 25 percent of freshmen granted admission under the program are Hispanic and about 6 percent are African American, according to the New York Times.
The case involves a white student, Abigail Fisher, who narrowly missed the cutoff for the Top Ten Percent program and ultimately was denied admission. Some lower-achieving minority students who also missed the cutoff were admitted because of racial preference, she argued. (While the case made its way through the courts, Fisher attended and graduated from Louisiana State University.)
The court, in effect, took an incremental step. The justices made clear that they prefer race-neutral measures such as Top Ten. They made it more difficult for those policies that take race into account to pass muster. But they did not pretend that our society is totally colorblind, as much as we would like it to be. They chose reality over ideology.
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