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Culture & Religion

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.

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.

This week, The Supreme Court of The United States will hand down decisions on a number of major issues. Here is what you need to know to stay up to date with the three biggest ones: 1) The court already ruled today on its Affirmative Action case, you can read the majority opinion here. A prospective student sued the University of Texas on the grounds that she had been denied admission in place of somebody who had allegedly been admitted based on racial factors. Supporters had hoped that a broad ruling might illegalize the practice of factoring race into admission across the board. The takeaway from the ruling is not negligible but is not the sweeping change many people expected. By and large, the court kicked the decision back down to a lower court.  The other two each regard gay rights. 2) DOMA, The Defense of Marriage Act, which was signed into law by Bill Clinton in 1996, is under fire in the case of United States V. Windsor. The court did not offer a ruling, but one is expected soon, most likely Tuesday morning. The government is being sued on the grounds that married gay couples do not receive the same federal benefits as straight couples. You can read about the relationship to political policy here. 3) Proposition 8, the controversial California ballot issue, is also being challenged in the case of Hollingsworth V. Perry. While the legal matter is ostensibly a voting rights issue, this is being viewed as primarily an issue with same-sex marriage in America’s most populous state. Depending on which way it goes, and what the majority opinion dictates, this could have ramifications for the legality and the illegality of gay marriage in other states as well. You can read more of our coverage on the development of this case here and here.

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