For months, backers of affirmative action have looked to the Supreme Court with trepidation. For the first time in a decade, the court was scrutinizing the consideration of race in public-university admissions. Speculation circulated that the justices had agreed to hear the case, regarding a modest affirmative-action policy at the University of Texas at Austin, in order to undo a 2003 ruling in which they gave public universities narrow permission to pursue racial diversity on campus.
For months, backers of affirmative action have looked to the Supreme Court with trepidation. For the first time in a decade, the court was scrutinizing the consideration of race in public-university admissions. Speculation circulated that the justices had agreed to hear the case, regarding a modest affirmative-action policy at the University of Texas at Austin, in order to undo a 2003 ruling in which they gave public universities narrow permission to pursue racial diversity on campus.
On Monday, however, a 7 to 1 majority handed down a limited ruling that puts off any grand reckoning. In at least one important respect, the result offered reassurance to advocates of policies such as Texas’, which permits admissions officials to consider race as one of many factors as they assess applicants’ personal qualities. The court, Justice Anthony M. Kennedy’s opinion for the majority noted, had ruled in 2003 that public universities may deem racial diversity on campus to be a compelling goal “essential” to their “educational mission.”
Yet Kennedy also stressed that, when the court then allowed race to be considered, it had not granted universities free license. 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.
The size of the court’s majority is not a sign that the legal foundations of affirmative action at public universities are firmly settled. Justices Antonin Scalia and Clarence Thomas signaled in concurring opinions that they would have squelched the court’s 2003 precedent, given the chance, and such a chance could present itself. The Texas case might proceed through the lower courts and wind up back before the justices. Or, as court-watcher Lyle Denniston argued, affirmative action’s opponents might now mount many more challenges, citing the justices’ strong insistence that any consideration of race in public-university admissions must be able to survive tough judicial scrutiny.
For now, though, the court has wisely avoided a radical repudiation of its past rulings. No American should be comfortable with any policy that takes account of race. But there should be at least a sliver of room in the Constitution for public universities to foster an atmosphere in which a diversity of viewpoints and life experiences — of which race is one possible determinant — compels students to challenge stereotypes and think critically about the world in which they live.