Why the Supreme Court ruling is bad news for affirmative action supporters

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The Supreme Court’s ruling Monday, while not the death blow to affirmative action that many of its supporters had feared, continues a push led by the Court’s conservatives to impose very high standards on any consideration of race in public policy and will likely make it harder for universities and other institutions to defend racial preferences in future cases.

The Court’s 7-1 ruling in practice does not affirm or reject the affirmative action programs at the University of Texas at Austin or any other school in the country, so its direct implications depend on how the Court and lower courts interpret the justices’ words. But the ruling ensures affirmative action programs across the country will be continue to be challenged in court, and it weakens the defenders of affirmative action on two grounds.

A bold stance by the justices

First, the Court opted against affirming the University of Texas’ admission program, which at first glance looks like a non-decision, but actually is a bold stance by the justices.

The University of Texas at Austin’s program was the kind of affirmative action it seemed the Supreme Court supported.  The program was modeled after the method used by the University of Michigan’s law school, which the Court upheld in 2003. The Texas program, like the one at Michigan, does not expressly give points in the admissions process  to students simply for being black or Hispanic, or impose racial quotas for the school as a whole.

Most students aren’t affected by the program, as 75 percent of the school’s students enter through a system in which the top 10 percent of each high school in Texas are admitted automatically. The remaining quarter of the students are considered through a “holistic” program that considers race, but also family income and other factors. White students can benefit from this second admissions system as well, so it is not solely for  minorities, at least according to the university.

Two lower courts had backed the Texas’ system, and the U.S. Supreme Court could have done so as well. It did not invalidate the Texas’ admissions system, but the Supreme Court’s decision to send the system back for a consideration at a lower court was definitely not an endorsement. And the refusal to affirm the Texas approach suggests that Justice Anthony Kennedy, the Court’s key swing vote, may never outright say he opposes all considerations of races at universities, but also never rule in favor of an admissions program that does so.

“Like so many educational institutions across the nation, the University has taken care to follow the model approved by the Court,” Justice Ruth Bader Ginsburg wrote in her dissent.

She added, “I would not return this case for a second look …. the University’s admissions policy flexibly considers race only as a “factor of a factor of a factor of a factor” in the calculus.”

A higher threshold for race-based admissions

Just as significantly, Kennedy’s opinion creates a new, higher threshold for the consideration of race in admissions policies.

In the future, for an affirmative action program to be defended, it must be shown that “no workable race-neutral alternatives would produce the educational benefits of diversity.” Those words are likely be invoked by every litigant who files against an affirmative action plan in the future.

The justices did not explain exactly how that standard would be applied. But it will complicate the University of Texas in defending its diversity program, as the university’s 10 percent plan on its own has increased the number of black and Hispanic students at the school without any direct consideration of race.

Schools will feel pressure to find systems that don’t directly invoke race, although critics of the 10 percent plan note that it in some ways relies on segregated high schools to result in diversity at the University of Texas.

Follow Perry Bacon Jr. on Twitter at @perrybaconjr