A compromise ruling on affirmative action, brokered by the U.S. Supreme Court on Monday, won’t satisfy everyone, including the most ardent supporters of using race-conscious college admissions policies to remedy past wrongs. Even so, the 7-1 decision kept alive, at least for now, the limited use of race to achieve the kind of campus diversity that will help ensure a more just and productive society.
The decision focused on an admissions plan used by the University of Texas at Austin. It affirmed precedents, going back to 1978, that government has a compelling interest in assembling a more diverse student body -- including by giving some consideration to an applicant’s race -- to achieve social and educational benefits.
In 2003, a divided court approved the narrow use of race by the University of Michigan Law School to create sufficient diversity to enrich the educations of all students.
But the high court also sent the case back for further judicial review by the U.S. Court of Appeals for the Fifth Circuit to determine whether a race-neutral policy could achieve the levels of diversity sought by the university. In doing so, justices clearly set a higher bar for justifying, and applying, race-conscious admissions policies.
Such scrutiny could jeopardize the University of Texas’s affirmative action program and spark other legal challenges to race-conscious admissions plans around the country. What the ruling will mean to the University of Texas program and, ultimately, to similar efforts nationwide, including in Ohio, is still unclear. At the very least, it will require even the most narrow of race-conscious admissions plans to demonstrate that race-neutral policies did not work.
Writing for the majority, Justice Anthony Kennedy stated that colleges and universities must show that "available, workable race-neutral alternatives" are insufficient.
Constitutionally, such a rigorous standard appears onerous, and unnecessary, for policies that consider race as only one of many factors in a decision to admit. As Justice Ruth Bader Ginsburg argued in her dissent, lower courts had already applied such strictures in upholding the university’s limited use of race in its admission policy. There is, thus, no compelling need for the appeals court to review the case again.
Nevertheless, the high court’s ruling does not ban the use of race in college admissions programs, and it provides any university whose admissions policy is challenged an opportunity to prove its program was necessary.
Today’s college students will have to live, and compete, in an increasingly diverse nation and world. The U.S. Supreme Court’s latest ruling on affirmative action, while flawed, need not prove fatal to the efforts of colleges and universities to assemble a more diverse student body that will increase the value of all students’ education.