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High Court Reaches Low Point

For weeks, the higher-education world has greeted each Monday morning with a combination of anticipation and dread, waiting for the U.S. Supreme Court to rule on Fisher v. University of Texas at Austin and probably end affirmative action as we know it. Instead, the court on Monday decided on a 7-to-1 vote to remand the case to the U.S. Court of Appeals for the Fifth Circuit for reconsideration, thus all but ensuring that two or three years from now we can go through all of this drama again.

But even in what amounts to an exercise in judicial can-kicking, there is ample evidence of how incoherent the affirmative-action debate has become, and why these controversies will remain with us regardless of how the court ultimately rules.

The gist of Justice Anthony M. Kennedy’s majority decision goes like this: Under prior Supreme Court precedent, most notably the 1978 Bakke and 2003 Grutter v. Bollinger decisions, affirmative action at public universities is allowable only to achieve the educational benefits of campus diversity. The original purpose of affirmative action—redressing past discrimination—is prohibited, says the court, because universities are in the education business and don’t have the authority or standing to carry out race-conscious social justice.

Further, any race-conscious policy must withstand “strict scrutiny” by the judiciary, which the court defines as a “searching examination,” and it is the government—that is, the university—that bears the burden of proof that “the reasons for any [racial] classification [are] clearly identified and unquestionably legitimate.” To meet the strict-scrutiny standard, the court ruled, policies can’t involve hard numerical quotas or make “an applicant’s race or ethnicity the defining feature of his or her application.”

So far, so good for affirmative-action programs as we know them today. Colleges have learned to combine the goal of diversity with a “holistic” evaluation process and avoid quotas.

It’s the next part that gets tricky, and shows how tied in knots the court’s reasoning has become. Kennedy explains that to survive strict scrutiny, an affirmative-action program must be “narrowly tailored” to meet diversity goals. Setting aside for a moment the indistinct and possibly confused nature of that metaphor, let’s quote the decision directly, since this is the heart of the matter:

Narrow tailoring also requires that the reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity. … This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications. Although “[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative,” strict scrutiny does require a court to examine with care, and not defer to, a university’s “serious, good-faith consideration of workable race-neutral alternatives.” … Consideration by the university is of course necessary, but it is not sufficient to satisfy strict scrutiny: The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If a “nonracial approach … could promote the substantial interest about as well and at tolerable administrative expense,” … then the university may not consider race. … Strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable, race-neutral alternatives do not suffice.

The court found that the Fifth Circuit had failed to conduct such a “careful judicial” inquiry and had improperly assumed UT-Austin was acting in good faith, thus ensuring years of more litigation and very likely another Supreme Court case.

Here’s why this is all very strange. First, it requires colleges to prove a negative: that no race-blind method of promoting racial diversity exists. It’s very difficult if not logically impossible to offer such proof. Then it offers the caveat that universities don’t need to exhaust every conceivable race-neutral alternative but rather engage in “serious, good-faith consideration” of such alternatives.

So this all comes down to trying hard enough? If a court gives a university an A for effort, affirmative action stands, but if the university didn’t have enough meetings or produce enough reports, it falls? What’s the legal standard of “good faith”? If the constitutional standard for affirmative action comes down to jumping through enough bureaucratic hoops, then affirmative action will be with us for a long, long time because colleges are really good at that stuff when they need to be.

More broadly, it’s strange that the legality of affirmative action is now wholly a matter of process and intent, not result. Admissions is binary and zero-sum; Abigail Fisher’s life wasn’t changed by why UT-Austin denied her admission. And what does it even mean for a policy that is explicitly designed to produce racial diversity to be “nonracial”? Can a race-centered program really be “race-neutral”?

Again, if the upshot is that colleges will be able to maintain their affirmative-action programs as long as they’re sufficiently clever and obscure about it, affirmative action is on solid legal ground. I say this as someone who supports affirmative action and wants it to continue.

That is mostly the point Justice Clarence Thomas makes, except backwards, in his lengthy concurring opinion, in which he argues that race-conscious policies designed to help minority students are legally indistinguishable from race-conscious policies designed to marginalize, humiliate, imprison, disfranchise, and otherwise harm members of minority groups.

There’s something inherently distasteful about citing Brown v. Board and Loving v. Virginia as arguments to overturn programs that improve educational opportunities for African-American students, or citing the morally infamous Korematsu case, which upheld the legality of concentration camps for American citizens of Japanese descent during World War II. Thomas compares UT-Austin to slaveholders and segregationists who also claimed to be working in the best interests of minority groups. It’s bizarre.

As Justice Ruth Bader Ginsburg notes in her lone dissent, “only an ostrich could regard the supposedly neutral alternatives as race unconscious.” In a footnote, she quotes “Professor Thomas Reed Powell’s famous statement: ‘If you think that you can think about a thing inextricably attached to something else without thinking of the thing it is attached to, then you have a legal mind.’ … Only that kind of legal mind could conclude that an admissions plan specifically designed to produce racial diversity is not race-conscious.”

In other words, we’re all going to spend at least a few more years pretending not to be talking about what we’re really talking about when we talk about affirmative action.

On the one hand, the fact that Justices Antonin Scalia and Thomas couldn’t get three more votes to ban affirmative action outright is good news for affirmative-action supporters. As long as colleges have some discretion built into their admissions systems, they’ll find a way to reach whatever goals they have.

On the other hand, this also means years more of affirmative action defining the national debate on race, justice, and higher learning. With Congress having more or less abdicated its lawmaking responsibilities, the Supreme Court has become the only branch of the federal government that decides big, important issues in a definitive way. That creates a lot of drama and attention but also narrows the scope of public debate to issues that, like race-conscious admissions policies, happen to be both contested and subject to constitutional challenge.

Meanwhile, there are no pending Supreme Court cases about whether it’s legal for California to put hundreds of thousands of minority students on waiting lists for introductory courses in community colleges, or for states across the country to raise public-university tuition by 50 percent or more, or for more than 600 colleges and universities to graduate less than 25 percent of black students within six years, or for predatory for-profit colleges and lenders to exploit minority students, or for accreditors to stand back and do nothing while learning gains for black college students lag well behind their peers.

All of those problems are arguably more important than the narrowly tailored question of whether the most well prepared minority students attend college at the most elite or next-most-elite colleges and universities. Affirmative action matters, but not as much as the high drama of Fisher may suggest.

Kevin Carey is director of the education-policy program at the New America Foundation.

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