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The Supreme Court did not kill affirmative action at public universities on Tuesday. The court’s position on the matter remains just as opaque as it was before.
Justice Anthony Kennedy unintentionally underscores this point in Tuesday’s plurality opinion, which has to do with a Michigan state ban on admissions policies that factor in race. “The consideration of race in admissions presents complex questions,” he writes, “in part addressed last term in Fisher v. University of Texas at Austin.”
“In Fisher,” he continues, “the court did not disturb the principle that the consideration of race in admissions is permissible, provided that certain conditions are met.”
What this court would consider an appropriate affirmative action policy, though, is not very clear. As we noted after the Fisher ruling came down, the court insisted that,
Any affirmative-action program must be “necessary” and “precisely tailored” to achieve a reasonable level of diversity. Courts “must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” Public universities must review applications individually, not by mechanically handing out points to minority applicants in a way that drives admissions decisions. And the burden is on universities to demonstrate that their policies meet constitutional standards. In the Texas case, the justices decided that lower courts had not assessed the program with sufficient care, and the ruling ordered them to look at it again.
In other words, the court pushed the issue off, leaving university officials across the nation with mostly broad guidelines about what the constitution will allow. The court in 2003 upheld one affirmative action policy, but that program no longer exists, and the court’s membership has since changed enough that the old precedent is commonly assumed to be in danger of explicit or effective repeal. It is possible — and hardly outside this court’s habit — that the justices will continue to insist that some ill-defined hypothetical affirmative action program would satisfy their review, but curb all of those that come before them for not meeting their standards. Then, as now, the court would keep the country guessing — and, perhaps, discourage public universities from trying.