Affirmative Action Treads Water

Today’s U.S. Supreme Court ruling in the Fisher v. UT Austin affirmative action case was surprising more for its silences than its declarations. Although the case was punted back to the district court, it was very much a punt: Left for another day, and maybe another court, was tackling whether race can be considered in admissions policies of public universities.

While they did kick the can down the road, the court also filled it with cement. In a 7 to 1 decision they ruled against the lower court not for upholding UT’s consideration of race but for its failure to “hold the University to the demanding burden of strict scrutiny articulated in Grutter [v. Bollinger] and Regents of Univ. of Cal. v. Bakke.

That strict scrutiny? That race be but one factor among many, that the university choose methods “narrowly tailored to its goal,” and that the court “ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”

Though California ended the practice of considering race (as well as gender and ethnicity) in admissions to state universities in 1996, the 10 chancellors of the University of California did file an amicus brief in support of UT’s affirmative action program. They argued, as we reported in an earlier blog item, that “student body diversity cannot be fully realized at selective institutions without taking race into account in undergraduate admissions decisions.”

With the ruling, which practically invites future lawsuits, how can a university take race into account and still satisfy the court? How does an admissions office prove that “no workable race-neutral alternatives would produce the educational benefits of diversity?”

We will ask our own admissions office and get back to you.

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