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Monday’s Supreme Court Decision and the Future of Affirmative Action

Today’s decision warns colleges and universities across the country that they need to be very careful about how they use race in admissions. But the headline is clear: they still may do so.
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Today the Supreme Court disappointed everybody expecting a landmark ruling on affirmative action. Rather than issue a decisive statement on whether racial preferences in higher education are consistent with the Constitution, the Court struck a moderate note and sent the case back to the Fifth Circuit Court of Appeals for reconsideration.

But in demurring today, the Court was loud and clear about two things:

1. Racial diversity in public universities is a compelling governmental interest. As first articulated in the Bakke case in 1978 and reaffirmed in the Grutter case a decade ago, the Supreme Court holds that educational benefits flowing from a racially diverse student body are significant enough to overcome a general ban on government policies that classify individuals by race. This is the essential logic behind affirmative action, and the Court upheld it today by a vote of 7-1. (Two justices, Scalia and Thomas, wrote separately that they are willing to overturn this conclusion of Grutter, but were not asked to do so in this case.)  

2. Any pursuit of student diversity through racial classifications must be “narrowly tailored” to the goal. This is the second branch of what is called “strict scrutiny,” the Court’s mode of evaluating policies that treat people differently based on race. And while it is nothing new, the Court is signaling that it is serious about requiring courts to look at admissions policies with a keen and skeptical eye:

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

It is hard to develop a policy that is more narrowly tailored than that of the University of Texas. As I have noted in this space, the admissions office uses race as“a factor of a factor of a factor of a factor” in assessing individual applicants. How Texas could have pursued racial diversity with a lighter hand is tough to imagine.

Whatever else it communicates, today’s decision warns colleges and universities across the country that they need to be very careful about how they use race in admissions. But the headline is clear: they still may do so.

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