The Supreme Court’s high bar on affirmative action

• Share on Facebook
• Share on Twitter
• Share via Email
• Copy Link

  Link Copied

The Supreme Court did not dismantle affirmative action in its long-awaited ruling on Monday. It didn’t really affirm the program, either.

Instead, the court left affirmative action intact, but stressed that universities must clear a high bar to defend it.

In judicial jargon, that bar is called “strict scrutiny.” Under longstanding precedent, government racial classifications already face such scrutiny in the courts. The new affirmative action ruling, Fisher v. University of Texas, found that a lower court wasn’t strict enough, because it said it deferred to the university’s expertise.

Writing for a seven-person majority, Justice Anthony Kennedy said that misses the whole point. Strict scrutiny is strict because it doesn’t defer.

Death by a thousand cuts?

Debating deference may feel like talking around the real issue–whether we still need diversity programs–but it’s how courts often set parameters. Viewed in that context, the logic of Justice Kennedy’s decision is bad news for affirmative action.

It’s just incrementally and bureaucratically bad–not necessarily bad today. “Strict scrutiny does not permit a court,” Kennedy writes, “to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice.” The idea is that judges have to look under the hood, and not take a university’s defense at face value.

For educators and civil rights advocates in the field, however, the idea that universities are running around without government supervision is hard to swallow.

While affirmative action accounts for only a small slice of the national college population–it’s not even an issue at most schools, which don’t have competitive admissions–courts and legislatures have been regulating and second-guessing it for decades. A series of legal decisions have narrowed how it works, (including three previous Supreme Court cases). The program under review in Texas is the third iteration of the state’s attempts to use diversity, in fact, while clearing the hurdles from previous Supreme Court decisions.

So at a certain point, university administrators may feel like they’re caught in an especially boring version of The Hunger Games–a series of increasingly difficult tests that they’re doomed to fail.

Post-racialism and the road ahead

Beyond judicial inspections and do-overs, Justice Kennedy laid down one other big marker: universities can only use race as a last resort. Universities have the “ultimate burden” of proving that “race-neutral alternatives” won’t work, he ruled, before they can even turn to “racial classifications.”

That is big, because the court is reviewing many civil rights laws that do not treat racial remedies as a last resort, from the pending voting rights case to fair housing rules next term.

Under current precedent, these laws patrol civil rights violations by looking for racial discrimination. They use racial “categories” in pursuit of equality–not to practice discrimination. So the Voting Rights Act’s relationship to black voters is protective, much like the Age Discrimination Act uses elderly “categories” to patrol age discrimination.