The Supreme Court’s decision this week in Fisher v. University of Texas surprised almost everyone.

Some expected a 5-3 decision striking down the university’s affirmative action plan; others predicted a 4-4 split that would have let its plan continue. (Justice Elena Kagan, formerly the solicitor general in the Obama administration, recused herself from the case.)

Instead, we got a 7-1 decision that directed a lower court to take another and more skeptical look at the university’s plan.

Sharply divided decisions have been the norm in affirmative action cases. The first time the court faced the issue, in the Bakke case, the court splintered.

Allan Bakke, a 35-year-old white man, had twice applied for admission to the University of California Medical School at Davis. He was rejected both times. After less-qualified minority students were accepted, Bakke sued, contending, first in the California courts, then in the Supreme Court, that he was excluded from admission solely on the basis of race.

Four justices argued that holding applicants to different standards based on their race violated the equal protection clause of the Constitution. Four others thought that, as the ultimate goal of affirmative action plans is to diminish inequality, the university’s effort was constitutionally permissible. Justice Lewis Powell stood alone in the middle.

He rejected the idea that universities’ “good intentions” should sway the court. Treating people differently on the basis of their race, he argued, is always constitutionally suspect. Therefore, policies that employ racial criteria must be examined with “strict scrutiny.” They are lawful only if are necessary to the achievement of some very important, or “substantial” goal.

He also rejected the idea that universities could make it their goal to achieve some specific percentage of minority student enrollment. Such racial balancing was, he said, “discrimination for its own sake.”

He accepted as a sufficiently “substantial” objective, however, the university’s goal of securing the educational benefits that flow from a diverse student body. He allowed that a university could take race into account in making admissions decisions, so long as race counted only as one factor among many and so long as individuals were judged as individuals.

There the law stood until 2003, when a sharply divided Supreme Court reaffirmed Justice Powell’s opinion from Bakke. Now it was Justice Sandra Day O’Connor who issued the decisive ruling. She held, with the support of four of her colleagues (including Justice Anthony Kennedy), that the University of Michigan’s undergraduate admissions plan operated too much as a quota system and failed to judge students as individuals and so was unconstitutional. With the support of the other four members of the court, however, she approved the admissions policy of Michigan Law School as being consistent with Justice Powell’s criteria.

With one interesting caveat: She added that “race-conscious admissions programs must be limited in time” and urged institutions to find ways of achieving the educational benefits they desired, without taking the race of applicants directly into account.

Her opinion gave no green light to affirmative action; it flashed an amber light, saying “slow down; stop ahead.”

The University of Texas, however, took O’Connor’s “amber” light as an excuse to “speed up” and promptly reverted to using a race-conscious admissions policy, though it already had diversified its campus substantially under a race-neutral alternative.

Hence Abigail Fisher’s lawsuit, decided Monday. Fisher applied unsuccessfully to the school in 2008 and later enrolled at Louisiana State University. A graduate of a Houston-area public high school, she said she was passed over by UT in favor of minority classmates with lower grades and fewer extracurricular activities.

In this week’s ruling, Kennedy’s opinion was not, to be sure, any “red light” for affirmative action. For that reason, some observers scored the case a win for the use of race-conscious admissions policies.

The court, however, also held that the lower courts that had approved the new Texas admissions plan had not really understood O’Connor’s ruling. They were too quick to accept the university’s claim that its race-conscious admissions program was necessary for achieving its educational goals.

Now, universities whose programs are challenged will have to demonstrate, with evidence, that their use of racial classifications is truly necessary to produce the desired educational benefits.

To do that, they will need to say clearly what those benefits are, find a way to measure them and show that those benefits can’t be had without discriminating on the basis of race — every part of which is really difficult.

O’Connor’s amber light for affirmative action is shining more brightly than ever. It will turn red, however, and probably soon.

Joseph R. Reisert is associate professor of American constitutional law and chairman of the department of government at Colby College in Waterville.

Copy the Story Link