On affirmative action, Justices chose realistic path

2013-06-25T00:00:00Z On affirmative action, Justices chose realistic pathEugene Robinson Washington Post Writers Group Arizona Daily Star

The Supreme Court decision on affirmative action could have been a lot worse. Given the court's ideological tilt, in fact, it was probably the best we could have hoped for.

This is a "dog that didn't bark" kind of story: In a 7-1 ruling, the justices ordered a lower court to reconsider its decision upholding the University of Texas' admissions policy. A tougher standard must be applied, Justice Anthony Kennedy wrote for the majority, in evaluating the school's practice of using the applicant's race as one of several criteria.

What the right-leaning court declined to do - presented with a case that some legal scholars likened to a hanging curve ball 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 acknowledges that there is still "a permissible way" for race to be considered.

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

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 that prohibited racial quotas but allowed schools to use race as one of many factors.

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.

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 a worthy, necessary goal. The Obama administration argued that racial diversity is vital in the military to promote "operational readiness."

Racial preference actually contributes relatively little to diversity on the university's campuses. The greater factor is a policy guaranteeing admission to the top students in every high school in the state - the so-called "Top Ten" program. About 25 percent of freshmen granted admission under the program are Hispanic and about 6 percent are African-American.

The University of Texas case involves a white student, Abigail Fisher, who narrowly missed the cutoff for the "Top Ten" and was denied admission. Some lower-achieving minority students who also missed the cutoff were admitted because of racial preference, she argued. (While the case moved through the courts, Fisher attended and graduated from Louisiana State University.)

The court took an incremental step. The justices made clear that they prefer race-neutral measures such as Top Ten. They made it more difficult for policies that take race into account to pass muster. But they did not pretend that our society is totally colorblind. They chose reality over ideology.

From a court so fond of conservative activism, I'll take it.

Email Eugene Robinson at eugenerobinson@washpost.com

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